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LIBRARY OF CONGRESS. 


Chap. Copyright No.. __. 

ShelL.YiM\H 



UNITED STATES OF AMERICA. 



CIVIL GOVERNMENT 



IN THE 




nit%fo 




. BY 

A. O.'WRIGHT, 

Author of "An Exposition of the Constitution of the United States,' 

"An Exposition of the Constitution of Wisconsin," 

and "American Constitutions." 



"That which contributes most to preserve the state is to educate chil- 
dren with reference to the state; for the most useful laws, and most ap- 
proved by every statesman, will be of no service if the citizens are not 
accustomed to and brought up in the principles of the Constitution." — 
Aristotle's Politics, Book V, Ch. 9. 



WISCONSIN EDITION. 



MADTSON, WIS 

MIDLAND PUBLI 




TWO" COPIES RECEIVED 



JVC 



Copyright, 1897, by A. O. Wright. 






DEMOCRAT PRINTING CO., MADISON, WIS. 



Uo Ueacbers an£> Students* 



It is a hopeful sign for the future of our country, that 
the Constitution of the United States is studied so largely 
in our schools. In a popular government, the people 
ought to understand the principles on which the govern- 
ment is based, and the machinery of government by 
which these principles are to be carried out ; that is, they 
ought to understand the Constitution of their nation. 
Some confused and imperfect knowledge of this will 
naturally be picked up by most citizens ; and a few law- 
yers and others will gain a comprehensive knowledge of 
the Constitution. But a clear and accurate knowledge 
cannot be generally diffused, except by regular instruc- 
tion in the public schools. It is therefore a hopeful 
sign that this instruction is now given in a large number 
of our schools. 

This book is a revision of the school book entitled 
"An Exposition of the Constitution of the United 
States," which passed through many editions. The 
present work contains most of the same matter, but with 
many changes suggested by experience, or compelled by 
decisions of courts, or legislation. There is also given 
for the first time a brief constitutional history, including 
the origin of the Constitution in English history and in 
the colonial governments, an account of the discussions 



PREFACE. 



in the Constitutional Convention, and the history of its 
ratification. 

The author's aim has been to nse plain language and 
direct and simple forms of statement. 

This book is the result of several years' experience in 
the class-room and in teachers' institutes. That expe- 
rience has led to certain methods of presenting the sub- 
ject-matter in the text-book. 

The order of the Constitution is followed. The Con- 
stitution of the United States has an order of its own, 
and a good one, and it is an aid to- the memory of the stu- 
dent to observe that order. 

Some topics are found scattered in different places, 
like the topic of impeachment. 'No arrangement of the 
Constitution can avoid this difficulty. Topics cross one 
another, and an arrangement which would bring some 
topics together would scatter others. The best plan for 
studying is to follow the order of the Constitution. 

As an aid to topical recitation, the heading of each 
paragraph is printed in black letters. The matter 
printed in smaller type may be omitted if there is lack 
of time, or with younger classes. 

A. O. WEIGHT, 

Madison, Wis. 



TABLE OF CONTENTS, 



PART I.— INTRODUCTORY. 



Page. 
3 



Chapter I.— The Enacting Clause, 

II. — The Sources of the Constitution, .... 12 
III. — Events Leading up to the Constitution, . . 25 
IV. — The Constitutional Convention, .... 28 
V. — The Ratification of the Constitution, . 33 
VI. — The Influence and Growth of the Constitu- 
tion, 40 

PART II.— THE ORGANIZATION OF CONGRESS. 
Article I. 

Section I. — In Whom the Legislative Power is Vested, . 45 

II. — The House of Representatives, 49 

III.- The Senate, 70 

IV.— Elections and Sessions of Congress, ... 78 

V. — Powers of Each House Separately, .... 84 

VI. — Powers of Members, 94 

VII.— The Process of Making Laws, 99 

PART III.- POWERS OF LEGISLATION. 

VIII. — Powers of Congress, 113 

IX. — Prohibitions on National Legislation, . . . 149 



D CONTENTS. 

PART IV.— THE EXECUTIVE. 
Article II. Page. 

Section I. — Organization, 177 

II.— Powers of the Executive, 201 

III.-- Other Sole Powers of the President, . . . 213 
IV. — Impeachment, 218 

PART V.— THE JUDICIARY. 
Article III. 

Section I.— Organization, . 233 

II.— Jurisdiction of the Courts, * 239 

III.— Treason, 252 

PART VI.— MISCELLANEOUS. 
Article IV. 

Section I.— State Records, 263 

II. — Relations of States to the Inhabitants of 

Other States, 264 

III. — New States and Territories, 267 

IV.— Federal Protection of States, 276 

Article V. — Amendments, 279 

Article VI. — The Constitution the Supreme Law of^the 

Land, . . . 282 

Article VII.— Ratification of the Constitution, . . . 286 

PART VII.— BILL OF RIGHTS. 

Introductory 291 

Article I. — Freedom of Religion, of Speech, and of As- 
sembly, 293 



CONTENTS. 

Article II.— The Right to Bear Arms, 

III.— Quartering Soldiers, ....... 

IV. — Unreasonable Searches and Seizures, 
V. — Rights of Accused Persons Before Trial, 
VI. — Rights of Accused Persons on Trial, . 
VII. — Trial by Jury in Common-Law Cases, . 
VIII. — Excessive Bail, Fines, and Punishments, 
IX. — Strict Construction of Personal Rights, 
X. — Limited Powers of the U. S. Government, 



Page. 
295 
296 
£97 
297 
301 
304 
305 
307 
307 



PART VIII.— LATER AMENDMENTS. 

XI.— Suits Against States, 313 

XIL— The Election of President, 314 

XIII.— Slavery Abolished, 315 

XIV. — Miscellaneous Provisions Relating to the 

Civil War, 316 

XV.— Negro Suffrage, 330 

Index, 345 



Thou, too — sail on, O Ship of State! 
Sail on, O Union, strong and great! 
Humanity, with all its fears, 
With all its hopes of future years, 
Is hanging breathless on thy fate! 
We know what Master laid thy keel, 
What Workman wrought thy ribs of steel, 
Who made each mast, and sail, and rope, 
What anvils rang, what hammers beat, 
In what a lorge and what a heat 
Were shaped the anchors of thy hope! 

Fear not each sudden sound and shock, 

'Tis of the wave, and not the rock; 

'Tis but the Happing of the sail, 

And not a rent made by the gale! 

In spite of rock and tempest's roar, 

In spite of false lights on the shore, 

Sail on, nor fear to breast the sea! 

Our hearts, our hopes, are all with thee; 

Our hearts, our hopes, our prayers, our tears, 

Our faith triumphant o'er our fears, 

Are all with thee— are all with thee! 

—LONGFELLOW. 



farl L 



UnttoDuctorg. 



We hold these truths to be self-evident: that all men are 
created equal; that they are endowed by their Creator with 
certain inalienable rights; that among these are life, liberty, 
and the pursuit of happiness; that to secure these rights gov- 
ernments are instituted among men, deriving their just pow- 
ers from the consent of the governed; that whenever any 
form of government becomes destructive of these ends, it is 
the right of the people to alter or abolish it, and to institute 
a new government, laying its foundation on such principles 
and organizing its powers in such form as to them shall seem 
most likely to effect their safety and happiness. Prudence, 
indeed, will dictate that governments long established should 
not be changed for light and transient cause; and accordingly 
all experience hath shown that mankind are more disposed to 
suffer while evils are sufferable, than to right themselves by 
abolishing the forms to which they are accustomed. — Thomas 
Jefferson. Declaration of Independence, July 4, 1776. 

Fourscore and seven years ago our fathers brought forth 
upon this continent a new nation, conceived in liberty, and 
dedicated to the proposition that all men are created equal. 
. . . We here highly resolve . . . that this nation, 
under God, shall have a new birth of freedom, and that a gov- 
ernment of the people, by the people, and for the people, shall 
not perish from the earth. — Abraham Lincoln, Speech at Get- 
tysburg, November 10, 1863. 



CONSTITUTION OF THE UNITED STATES* 



CHAPTER I. 

THE ENACTING CLAUSE. 

This is what I call the American Idea. This idea demands as the proxi- 
mate organization thereof a democracy, that is, a government of all the 
people by all the people for all the people ; of course, a government of the 
principles of eternal justice, the unchanging law of God ; for shortness' sake, 
I will call it the idea of freedom.— Theodoee Pabkeb, in 1850. 

We, the people of the United States, in order to form a more per- 
fect union, establish justice, insure domestic tranquility, provide 
for the common defense, promote the general welfare, and secure 
the blessings of liberty to ourselves and our posterity, do ordain 
and establish this Constitution for the United States of America. 

I. The United States a republic. — 

Governments are classified according to their form 
as Monarchies, Aristocracies, and Democracies. 

1. A Monarchy is a government by one person. A 
monarchy may be either absolute or limited. In an ab- 
solute monarchy the sovereign is not restricted in his 
powers by any constitution; in a limited monarchy he 
is restricted in his power by some kind of constitution, 
written or unwritten. 

2. An Aristocracy is a government by a small part of 



4 CIVIL GOVERNMENT. 

the people, who form a privileged class. An aristocracy 
may be one of birth, or of wealth, or of both combined. 

3. A Democracy is a government by the people. A 
democracy may be either pure or representative. A 
pure democracy is one in which the voters themselves 
meet and make laws. In a representative democracy the 
voters elect representatives to make the laws. A repre- 
sentative democracy is usually called a republic. It is 
plain that in so large a country as ours the voters can- 
not assemble to make laws, but that they must do that 
work by representatives; so that in a large country a 
pure democracy is impossible; if the government is 
democratic, it must be a representative democracy. 

The United States, then, is a republic. It is not the 
government of one or of the few, but of the many. And 
as it is representative in form, it is a republic. 

A republican form of government is guaranteed to 
every state in the Union, by this Constitution. (Art. IY, 
Sec. 4.) Whatever else this means, it means at least 
that no state shall ever become a monarchy or an aris- 
tocracy. 

II. The people the source of power. — 

A republic is a government by the people through rep- 
resentatives. The representatives govern, but they do 
not govern by any inherent right, but only as represen- 
tatives. The people are the source of power. In the 
words of President Lincoln, this is "a government of the 
people, by the people, and for the people." 



ENACTING CLAUSE. 5 

The members of the House of Representatives are the 
most direct representatives of the people, as their name 
indicates. But every officer and legislator of the United 
States, or of any state, is directly or indirectly chosen 
by the people, and is responsible to the people for the 
faithful performance of his duties. 

The Enacting Clause recognizes this fact, that the 
people are the source of power, and says expressly, "We, 
the people of the United States, do ordain and establish 
this Constitution. " 

III. A popular government best. — 

A democratic government is best in any country in 
which the people are fitted for it. Rude and barbarous 
nations, or nations intelligent but debased morally, are 
not fitted to govern themselves. Hence monarchies or 
aristocracies are best for such nations. But where the 
people generally have a fair degree of intelligence and 
of moral character, a republican government is best. 

The people will doubtless make mistakes and do 
wrongs, but so will any government, and the mistakes 
and injustice of a republic are certainly no worse than 
those of a monarchy or an aristocracy. No one claims 
that republics will be perfect. Nothing human is per- 
fect. 

But we can reasonably claim that those oppressions 
and corruptions which are easy to begin and to keep up 
under other forms of government, are almost impossi- 
ble under a republic. In an absolute monarchy the 



6 CIVIL GOVERNMENT. 

interests of the king and his favorites are attended to, 
without ranch regard to the interests of the rest of the 
people. In an aristocracy the interests of the ruling 
class are the only interests thought of. But in a re- 
public the interests of one class are balanced by the in- 
terests of the other classes. All are represented; and 
the interests of all are secured as well as is possible in 
human affairs. The public discussions, which are neces- 
sary in a popular government, prevent secret forms of 
corruption, and help to secure justice and purity of ad- 
ministration. 

In short, when the people of any country are fit to 
take care of themselves, they can do it better than any 
king or nobles can do it for them; and when they are 
not fitted to govern themselves, no mere form of a 
written constitution will secure them a real government 
of the people. Under the form of a democracy it has 
been possible in some countries for a despot or a power- 
ful class to rule. Such governments have the form of a 
democracy, but are really monarchies or aristocracies. 

IV. Local self-government and national unity. — 

The United States differs from many republics in be- 
ing composed of several states. It is a federal republic, 
in which some powers are given to the state governments 
and some to the United States government. Just where 
to draw the line between these two sets of governmental 
functions, is a difficult question both in theory and in 
practice. Ever since the Constitution was adopted, 



ENACTING CLAUSE. 7 

there have always been two political parties, the one in- 
clined to limit the powers of the United States govern- 
ment and increase the powers of the states, and the other 
party inclined to increase the powers of the United States 
government and limit those of the states. But, on the 
whole, the general government has been slowly gaining 
power at the expense of the state governments. This 
growth in power, however, has not been so great as to 
change the essential relations of the two sets of govern- 
ments. These principles may be stated thus: 

1. The United States government has all the power 
needed for national independence. 

2. The State governments have all the power needed 
for local self-government. 

V. Two jurisdictions. — 

Every person in the United States (except in the Dis- 
trict of Columbia and unorganized territories, in forts, 
arsenals, and dockyards, or on the high seas) is thus sub- 
ject to two jurisdictions. He is subject to two sets of 
laws, which are made and administered by two different 
sets of officers, and he pays taxes and owes allegiance 
to both governments, that of the state or territory in 
which he is, and that of the United States. For nearly 
all the ordinary relations of business and ' society, he 
looks to his state law and state government. He mar- 
ries and is divorced, educates his children, transmits his 
property, buys and sells, and is protected from thieves 
.and murderers, under the laws of the state or territory 



8 CIVIL GOVERNMENT. 

where lie is at the time. But he is protected from for- 
eign foes by United States troops and ships; he uses 
United States money; sends and receives letters through 
the United States post offices; and, if he is a foreigner, 
he can only he naturalized according to United States 
law. It is plain that in ordinary business and society 
the state government touches the citizen at far more 
points than the general government does. 

VI. Municipal self-government. — 

But the principle of local self-government is carried 
out still further. The states leave the affairs of each 
township, village, city or county to be regulated by the 
people thereof, under the general provisions of state 
laws which limit and define the powers of these subdi- 
visions of a state. There is nothing in the United States 
Constitution which requires this, and not very much in 
the constitutions of the several states. But it is a part 
of the unwritten constitution, the political habits of the 
American people. Thus the federal character of our 
republic harmonizes with the American habit of local 
self-government, and is thus sustained by a power far 
more effectual than any written constitution. 

VII. Objects of this Constitution. — 

The objects of this Constitution, as stated in the en- 
acting clause, are six: 

1. To form a more perfect union. 

2. To establish justice. 

3. To insure domestic tranquility. 



ENACTING CLAUSE. Q 

4. To provide for the common defense. 

5. To promote the general welfare. 

6. To secure the blessings of liberty to the people of 
the United States and their posterity. 

These all refer to the defects in the government of 
the United States at that time, under the Articles of 
Confederation. 

That union was (1) a very imperfect one; (2) it did 
not establish justice; (3) it did not insure domestic tran- 
quility; (4) it did not provide efficiently for the common 
defense; (5) it could do but little to promote the general 
welfare; (6) and therefore it was not strong enough to 
secure the blessings of liberty to this country for any 
great length of time. 

The defects of the Confederation were many, but they 
may all be summed up in one phrase: the real power 
was vested in the several states, and Congress had no 
power to enforce its laws. Congress could resolve, but 
it could not execute; it could ask the states to pay 
taxes, to furnish troops, to conform to treaties, to do 
justice to each other's citizens, but it could not command 
them. 

VIII. The Constitution compared with the Articles of 
Confederation. — 1. This Constitution forms a more perfect 
union than that under the Articles of Confederation. It is 
still not a perfect union; for it was not wished to destroy the 
states and make one centralized government, nor would that 
have been wise. But the loose and inefficient Confederation 
was exchanged for a Federation in which a strong national 
government was set up over states still retaining much power. 



10 CIVIL GOVERNMENT. 

2. Justice is established by means of a national judiciary, 
which protects foreigners and the citizens of other states 
against unjust decisions of any state courts. (See Art. III.) 

3. Domestic tranquility is insured by the provision that the 
United States shall protect each state against domestic vio- 
lence. (Art. IV, Sec. 4.) 

4. The common defense could only be provided for by a gov- 
ernment capable of raising and supporting armies and navies. 
Even in the enthusiasm of the Eevolutionary War, the cen- 
tral government showed how weak it was to raise armies or 
collect taxes, and thinking men saw that in another war it 
might be still worse. 

5. To promote the general welfare is an elastic expression, 
capable of being lengthened or shortened according to our 
own ideas of what is for the general welfare. This clause has 
covered things as different as the purchase of Louisiana, an 
expedition to the north pole, a system of weather reports, and 
the establishment of the Agricultural Department. Under 
"this clause the powers of the general government may yet be 
greatly extended. 

6. To secure the blessings of liberty, law is needed as well 
as liberty. Liberty alone soon degenerates into license, and 
that into anarchy, which is worse than despotism. 

The American idea of liberty is of liberty protected by law. 
This principle is carried out in our own national government. 
The power of the general government is given to it in order 
to secure the blessings of liberty to the people; not to destroy 
that liberty, but to protect it. Under this government we 
have flourished during this first century as few nations of the 
world have ever done. We have also survived the shock of a 
great civil war, which settled the question whether this Con- 
stitution should be accepted for all it means. We may there- 
fore reasonably hope that our liberty, protected by the 
strength of our national government, will be handed down 
to a remote posterity. 



ENACTING CLAUSE. 11 

IX. The United States not a confederacy. — 

The enacting clause reads, "We, the people of the 
United States, do ordain and establish this Constitu- 
tion" It does not read, "We, the states, do contract 
and enter into a treaty with each other." The United 
States is therefore one nation, and not a confederacy of 
independent allied states. The source of power is not 
in the several states, but in the people of the United 
States. 

This enacting clause was not worded as it is hastily or in- 
considerately. There was a great difference of opinion in the 
United States, both before and after this Constitution was 
adopted, upon this very point. The thirteen colonies, though 
all alike dependent upon England, were legally independent 
of one another. They had formed several alliances at dif- 
ferent times among themselves for defense, and when the 
struggle with the mother country began they were drawn 
together by the necessities of the war. Many thoughtful 
men advocated a much closer union even in 1775; but the Ar- 
ticles of Confederation adopted in 1781 were as much as the 
states were then willing to concede. And it was not until 
experience had shown the great evils which come from the 
jealousies and rivalries of semi-independent states, held to- 
gether only by a weak confederate government, that the peo- 
ple became willing to establish a real national government. 
And even then there was a large minority opposed to the 
Constitution, because it took away the independence of the 
states. 

After the Constitution was adopted the contest was carried 
on by the two parties which were immediately organized, the 
Federalist and the Anti-Federalist. As the Constitution by its 
practical workings showed its value, it came to be accepted 
generally by the people as the bond of our union. And at 



12 CIVIL GOVERNMENT. 

last our great civil war has settled the question practically. 
The seceding states claimed not only the right of revolution, 
which every oppressed people has, but the right of secession, 
claiming that we were not one nation, but a confederacy of 
independent allied states, and that any state had a legal right 
to dissolve the alliance at pleasure. The result of the war 
decided that the American people are one nation, and mean to 
remain so. 



CHAPTER II. 

THE SOURCES OE THE CONSTITUTION. 

Old England knows it true ; 
The germ she planted grew, 

Of liberty. 
It grew in woodland glade, 
In hearts all undismayed, 
Who Freedom's cradle laid 

Beyond the sea. 

Across the ocean wave, 
Our land a refuge gave 

From tyranny. 
The hardy pioneers, 
Baptized in blood and tears, 
The child of hopes and fears, 

Fair liberty. 

I. What is a constitution? — 

The constitution of a nation is its system of civil 
government. This system may or may not be written 
down in a formal document. In the one case, the na- 
tion is said to have a written constitution; in the other 
case, it is said to have an unwritten constitution. 



SOURCES OF THE CONSTITUTION. 13 

It is frequently said that Great Britain has an un- 
written constitution,, and the United States a written 
one. This is near enough true for an epigram, but it 
is not strictly accurate. Great Britain has no written 
constitution covering its whole system of government, 
but the Bill of Rights, enacted in 1689, is a sort of 
constitution, as it establishes certain principles of free- 
dom and determines who shall be king or queen. And 
some other acts of Parliament, of fundamental impor- 
tance, may also be considered as parts of a written con- 
stitution. On the other hand, the United States has 
many things in its system of government which are not 
contained in the written constitution. Some of these 
are written in statute laws; others are simply a part of 
the political habits and ideas of the people which have 
grown to have the force of constitutions. 

II. English constitutional liberty. — 

The Revolution of 1689 established constitutional 

liberty in England, and the same liberty was claimed by 

the colonies. This liberty was the outgrowth of many 

centuries of struggle against the kings, culminating in 

the revolt against James II and in the Bill of Rights. 

III. The Norman conquest. — In 1066 the Norman French, 
led by William the Conqueror, conquered England and estab- 
lished a feudal aristocracy, with a powerful king- at the head. 
The people had no rights, and were mostly serfs owned by 
their landlords. But the memory remained of old English 
liberties under King Edward the Confessor and his ancestor, 
Alfred the Great. 



14 CIVIL GOVERNMENT. 

IV. Magna Charta. — In 1215 the tyranny of King- John 
led to a revolt of the nobility, and a treaty between the king 
and his barons, called Magna Charta, or the Great Charter. 
There had already been charters given by kings to cities and 
monasteries, but this was the great charter for all England. 
In it the barons secured the feudal rights of the aristocracy, 
which was all they cared for; but Stephen Langton, Arch- 
bishop of Canterbury, who was not a Norman, but an English- 
man, drew up the charter and put into it many things to 
protect the liberties of the common people. This charter was 
really a constitution, forced from an unwilling king. It was 
often violated by John and his successors, and as often new 
charters were granted, substantially the same as the original. 
The people had in these charters bills of rights, but no good 
way of compelling the kings to observe them. 

V. Extracts from Magna Charta. — The great charter 
granted by King John, June 15, 1215, is occupied largely with 
protecting the rights of the feudal aristocracy; but the germs 
of the representative system and of the Bill of Eights can be 
found in the passages given below: 

"No scutage or aid shall be imposed in our kingdom unless 
by the general council of our kingdom. . . . And for 
holding the general council of the kingdom concerning the 
assessment of aids, except in the three cases aforesaid and for 
the assessing of scutages, we will cause to be summoned the 
archbishops, bishops, abbots, earls and greater barons of the 
realm, singly, by our letters. And furthermore, we will cause 
to be summoned generally by our sheriffs and bailiffs all 
others who hold of us in chief, for a certain day, that is to 
say forty days before their meeting at least, and at a certain 
place; and in all letters of such summons we will declare the 
cause of such summons. And summons being thus made, the 
business shall proceed on the day appointed, according to 
the advice of such as shall be present, although all that were 
summoned come not. 

"Nothing from henceforth shall be given or taken for a 
writ of inquisition of life or limb, but it shall be granted 



SOURCES OF THE CONSTITUTION. 15- 

freely and not denied. [This is the original of the writ of 
habeas corpus.] 

"No freeman shall be taken, or imprisoned, or disseized, or 
out-lawed, or banished, or in any ways destroyed, nor will 
we pass upon him, nor will we send upon him, unless by the 
lawful judgment of his peers, or by the law of the land. 

"We will sell to no man, we will not deny to any man jus- 
tice or right." 

VI. The first Parliament. — A little later Simon de Mon- 
fort, Earl of Leicester, headed a great revolt of a part of the 
aristocracy, and called on the common people for help. In 
1265 he summoned a parliament of elected representatives to 
consult with him. He was killed in battle with the king's 
son, afterward Edward I, and the reform went back for a 
time, but the "good Earl Simon" and his parliament were not 
forgotten. 

VII. Parliament becomes a power. — A little later the 
kings began frequently to summon Parliament for the pur- 
pose of levying extra taxes, in addition to the regular feudal 
dues, to help them in their long wars with France and Scot- 
land. These Parliaments got into the habit of calling for a 
"redress of grievances" before they would grant a "vote of 
supplies," and little by little this grew into a power of mak- 
ing laws. In England the form still remains of the Parlia- 
ment humbly petitioning the sovereign that he would gra- 
ciously make a certain law. The reality has long been that 
Parliament enacts a law, and the king has to approve it. 

VIII. Power of the purse. — But this power of making 
laws g-rew out of the power of levying taxes. Parliament 
bought one right after another by granting taxes or by 
threatening- to refuse them, until at the close of the Middle 
Ages Parliament had become almost as powerful as the king. 
The liberties of Englishmen were guarded against any tyr- 
anny of the king by the Parliament, which consisted of the 
Lords Temporal, or titled nobles, the Lords Spiritual, or the 
bishops and mitred abbots, the two meeting together as the 
House of Lords, and the Commons, who were the elected rep- 



16 CIVIL GOVERNMENT. 

resentatives of the gentry, that is of the lesser landlords, 
and of the governing- bodies in the cities or boroughs. The 
common people had no voice in Parliament. In each city 
there was an aristocracy of wealth, which ruled it. In the 
country the landlords, great and small, barons and gentle- 
men, ruled about as they pleased on their own estates. The 
people in the country were no longer serfs. They had be- 
come farm laborers or tenant farmers, but they still had no 
political rights. 

IX. The House of Lords weakened. — But with the acces- 
sion of the Tudors and the end of the Middle Ages a great 
change took place. The War of the Eoses had destroyed the 
power of the great nobles by death and by confiscation of 
their estates, and the Tudor kings took care not to make new 
nobles. The power of the House of Lords was thus weakened, 
while the House of Commons was not strong enough to at- 
tack the king alone. So the kings used Parliament now to 
carry out their wishes under the forms of law. The great 
secession of the Church of England from the Church of Pome 
was carried out by Henry VIII, by means of a subservient 
Parliament which only partly represented the people. The 
monasteries were destroyed, so that there were no longer 
any abbots in the House of Lords. The bishops were now 
appointed by the king, and were his most willing helpers. 
The king was the source of all political preferment, and am- 
bitious Commoners did not care to oppose him. So Par- 
liament was High Church under Henry, Puritan under Ed- 
ward, Catholic under Mary, and under Elizabeth a compro- 
mise of all religious parties. Parliament changed with the 
personal wishes of the sovereign. 

X. "New power of the Commons. — But all this time the 
Commons were growing in power. Charles I provoked a con- 
test with Parliament in such a way as to rouse the whole 
nation, and cause the election of Parliament after Parliament 
which the king could not control, thus teaching the Commons 
their power when united, a lesson they have never since for- 
gotten. 



SOURCES OF THE CONSTITUTION. 17 

The Commons finally revolted, and a civil war ensued be- 
tween king and Parliament. The Parliamentary army 
under Cromwell finally overthrew Parliament itself, executed 
the king, and made Cromwell Protector — that is, king in all 
but name. On Cromwell's death the nation re-established 
both king and Parliament. 

After the death of Charles II, his brother, James II, in 
three years succeeded in arraying against himself the whole 
nation, and the revolution of 1689 followed. His son-in-law, 
William of Orange, and his daughter Mary were made king 
and queen by act of Parliament. 

XI. The English revolution. — 

The revolution of 1689 firmly established the results 
of these centuries of struggle and growth, and incorpor- 
ated them in acts of Parliament. It settled the follow- 
ing points, among others: 

(a) That the king did not rule "by the grace of God," 
but by act of Parliament. This made the king the 
choice of the people, and settled the right of the people 
to rebel against unjust government. 

(6) That the personal rights of Englishmen to life, 
liberty, and property, as stated in the Bill of Eights, 
should be secure against arbitrary power. 

(c) That Parliament should be powerful enough to 
defend these rights against the king. 

(d) That the power of taxation to support the gov- 
ernment should be in the House of Commons. 

(e) That judges should be appointed "for life or dur- 
ing good behavior." Previously to the revolution they 
had been appointed "during the king's pleasure." This 

U. S. Con. -2. 



18 CIVIL GOVERNMENT. 

made the courts mere tools of the king. The revolution 
made them independent, and therefore protectors of 
justice. 

These are among the main ideas of English constitu- 
tional liberty. The decisive battle was the English Rev- 
olution of 1689, though many features of the English 
constitution were secured before or after that date. On 
these ideas the American colonies based their resistance 
to English tyranny; and when they had secured their 
independence, Americans founded their new govern- 
ments of the state and of the nation on the forms and 
principles of English constitutional freedom, except that 
they got rid of a king altogether and made a republican 
form of government. 

XII. The Bill of Rights.— The Bill of Eights was adopted 
by Parliament, Feb. 13, 1688 old style, which is the same as 
Feb. 23, 1689. This bill recites the acts of King James II, to 
guard against which in future the bill is passed, declares that 
James has abdicated, elects William and Mary king and 
queen, and provides for the succession to the throne. The 
declaration of rights embodied in the bill is as follows: 

"1. That the pretended power of suspending of laws, or 
the execution of laws by regal authority, without consent of 
Parliament, is illegal. 

"2. That the pretended power of dispensing with laws or 
the execution of laws by regal authority, as it hath been as- 
sumed and exercised of late, is illegal. 

"3. That the commission for erecting the late Court of Com- 
missioners for Ecclesiastical Causes, and all other commis- 
sioners and courts of like nature, are illegal and pernicious. 

"4. That levying money for or to the use of the crown by 
pretense and prerogative, without grant of Parliament, for 



SOURCES OP THE CONSTITUTION. 19 

longer time or in other manner than the same is or shall be 
granted, is illegal. 

"5. That it is the right of the subjects to petition the King, 
and all commitments and prosecutions for such petitioning 
are illegal. 

"6. That the raising or keeping a standing army within the 
kingdom in time of peace, unless it be with consent of Par- 
liament, is against law. 

"7. That the subjects which are Protestants may have arms 
for their defense suitable to their conditions, and as allowed 
by law. 

"8. That election of members of Parliament ought to be 
free. 

"9. That the freedom of speech and debates or proceedings 
in Parliament ought not to be impeached or questioned in any 
court or place out of Parliament. 

"10. That excessive bail ought not to be required, nor ex- 
cessive fines imposed; nor cruel and unusual punishments in- 
flicted. 

"11. That jurors ought to be duly impaneled and returned, 
and jurors which pass upon men in trials for high treason 
ought to be freeholders. 

"12. That all grants and promises of fines and forfeitures 
of particular persons before conviction are illegal and void. 

"13. And that for redress of all grievances and for the 
amending, strengthening and preserving of the law, Par- 
liament ought to be held frequently." 

XIII. Parliament absorbs executive power. — 

There was thus a constitutional government estab- 
lished in England, with three separate departments — 
executive, legislative, and judicial — the executive still 
holding the place of honor. For a time the king ap- 
pointed his cabinet officers; but later on Parliament 
secured for itself the power of appointing and removing 



20 CIVIL GOVERNMENT. 

the heads of the executive departments, who are now 
always members of Parliament and the leading mem- 
bers of the party in power in the House of Commons. 
This change has taken away the executive power from 
the sovereign and placed it in the hands of Parliament. 
This later change was not completed in England at the 
time of the American Revolution, and it has never been 
imitated in the state or national governments of this 
country. Many of the earlier state governments during 
and after the Revolution, however, accomplished sub- 
stantially the same results by having the legislature elect 
the governors, judges, and other state officers. 

XIV. The colonial governments. — 

The colonies of Great Britain which afterward be- 
came the United States of America had several different 
forms of government, all based on English ideas. But 
after the English Revolution of 1689, the English gov- 
ernment reorganized them as far as possible on the Eng- 
lish model. The appointed Governor, the appointed 
Council and the elected Assembly of most colonies cor- 
responded to the hereditary King, the hereditary Lords, 
and the elected Commons. The colonists claimed the 
personal liberties guaranteed to Englishmen by the Bill 
of Rights. Each colony was thus a little constitutional 
monarchy, except Connecticut and Rhode Island, which 
were little republics. The three forms of government 
in the colonies were these: 

1. The Royal Provinces. — In these the governor and 
judges were appointed by the king. The upper house 



SOURCES OF THE CONSTITUTION. 21 

of the legislature was generally appointed by the gov- 
ernor, and only the lower house of the legislature was 
elected by the people. Both the governor and the king 
had a veto upon the laws. So that if the representatives 
of the people passed a law obnoxious to the royal party, 
it could be negatived by the upper house or vetoed by 
the governor or annulled at any time by the king. But 
no tax could be levied without the consent of the legis- 
lature. Virginia (after 1624) is the best example of a 
royal province. 

2. The Proprietary Colonies. — In these the supreme 
power was vested in the proprietor, who was either a 
man or a company. The proprietor, if living in the 
colony, virtually ruled as king; or if in England, ap- 
pointed a governor and other officers. Pennsylvania is 
the best example of a proprietary colony. 

3. The Chartered Colonies. — In these the people 
elected their own governor and other officers, as well as 
the legislature. Connecticut is the best example of a 
chartered colony. 

In general terms, with some exceptions, we may say 
that the New England colonies were chartered, the 
middle colonies proprietary, and the southern colonies 
were royal provinces. 

XV. Germs of liberty. — 

All these governments contained the germs of popular 
liberty. In all the colonies the people wished to govern 
themselves, and only submitted to the arbitrary restric- 
tions of the king, and of some of the proprietors, because 



22 CIVIL GOVERNMENT. 

they were compelled to. As soon as they rebelled 
against the English government in 1775, they at once 
expelled their royal or proprietary governors and elected 
governors of their own. They preferred the type of 
government of the chartered colonies, and adopted it as 
soon as they conld. The state governments are now sub- 
stantially of the form of government in the chartered 
colonies. 

And when the people came to set np a true national 
government for the United States, they adopted the same 
general form. The changes that have been made since 
the adoption of this Constitution in the forms of the 
state and national governments, have been in the direc- 
tion of popular representation and personal liberty. 

XVI. The first state constitutions. — 

The first state constitutions were adopted in 1776, 
upon the recommendation of the Continental Congress, 
when the Declaration of Independence was adopted. 
Up to this, time the war had been a rebellion to secure a 
redress of grievances under the British government, and 
the Continental Congress and the various Provincial 
Congresses had been merely revolutionary bodies, not 
claiming any regular legal authority. The Continental 
Congress now assumed to be the organ of a nation, and 
asked the constituent states to establish regular govern- 
ments. Thus, it was the nation which was historically 
first, not the states. These first state constitutions, 
hastily drawn and adopted during the war, were neces- 
sarily defective in many particulars, and after peace 



SOURCES OP THE CONSTITUTION. 23 

came were changed for more carefully considered docu- 
ments. Most of them, in trying to avoid arbitrary au- 
thority, made the same mistake which the Continental 
Congress did for the United States — they did not es- 
tablish any real executive. All contained declarations 
of rights, based on the great English constitutional doc- 
uments. The transition from the colonial method is 
marked by the peculiar method of organizing the new 
state governments. Under the royal governments the 
Assembly had been the only relic of popular representa- 
tion. The government had been appointed by the royal 
authority, directly or indirectly. In these new state 
governments the Assembly, instead of asking the people 
to elect these officers, assumed the power as the people's 
representatives to appoint them itself. The people still 
elected the Assembly as before, but the Assembly elected 
the governor, the governor's council, and all the officers 
of the government. A property qualification was re- 
quired of voters ; in some states greater, and in some less. 
A higher property qualification was generally required 
of the legislators and of the governor and of other im- 
portant officers. Only in New York and in the two 
chartered colonies, Connecticut and Rhode Island, which 
made no changes in their government, was the governor 
elected by the people. 

XVII. The second state constitutions. — 

But' within five years before and after the adoption 
of the United States Constitution, all the other northern 
and middle states had changed their constitutions so that 



24 CIVIL GOVERNMENT. 

the governors were elected by the people, while hi the 
southern states it was many years before that change was 
made. The election of two houses of the legislature by 
the people and the abolition of the governor's council, or 
its change from an upper house of the legislature to an 
advisory board for executive acts, came very early in 
most states, about the same time as the adoption of the 
United States Constitution. 

XVIII. A national government. — 

The Confederation adopted in 1781 was not a govern- 
ment at all in any real sense of that word. It was 
thirteen separate governments trying to work together. 
The only way to have a national government, and at the 
same time not abolish the state governments, was to do 
substantially what the Constitutional Convention did do. 
It created a national government in addition to the state 
governments, with the line between the powers of the 
nation and the state drawn as carefully as possible. The 
national government had three departments, executive, 
legislative, and judicial, and it was not a monarchy, but 
a republic in form. In these respects it was modeled 
from the state governments. Most of the details of its 
organization, also, were taken from the then existing 
state constitutions. In turn it has had a great influence 
upon the form and the phraseology of later state consti- 
tutions. Most of these details can be traced back to an 
English origin. Many of the details also were continued 
from the Articles of Confederation. 



EVENTS LEADING UP TO THE CONVENTION. 25- 



CHAPTER III. 

EVENTS LEADING UP TO THE CONVENTION. 

Methinks I see in my mind a noble and puissant nation rousing herself like 
a strong man after sleep, and shaking her invincible locks ; methinks I see- 
her as an eagle mewing her mighty youth, and kindling her undazzled eyes 
at the full midday beam.— John Milton. 

I. Washington leads in this Revolution. — The idea of a 
national government, instead of a confederacy of semi-inde- 
pendent state governments, was of slow growth. Washing- 
ton was led to it by his experience during the war of the in- 
efficiency of the Congress of the Confederacy either as a 
legislative or an executive body. When the war closed he 
refused to lead his soldiers in a military revolution to over- 
turn the government, but devoted his energies for the next 
six years to carrying out the peaceful revolution which es- 
tablished a real national government. The bankruptcy of the 
weak general government because the states would not al- 
low it to levy taxes, and the need of power to regulate com- 
merce, were the principal influences which enabled a small 
majority of the people to finally establish the new govern- 
ment. 

II. Thomas Paine. — Six months before the Declaration 
of Independence, in a pamphlet entitled "Common Sense," 
which contributed greatly to make public opinion in favor 
of independence, Thomas Paine had said: 

"Nothing but a continental form of government can keep 
the peace of the continent. Let a continental conference be 
held to frame a continental charter, drawing the line of busi- 
ness and jurisdiction between members of Congress and mem- 
bers of Assembly, always remembering that our strength and 
happiness are continental, not provincial. The bodies chosen 
conformably to said charter shall be the legislators and gov- 



26 CIVIL GOVERNMENT. 

ernors of the continent. We have every opportunity and 
every encouragement to form the noblest and purest con- 
stitution on the face of the earth." 

III. Hartford convention. — In 1780, before the war ended 
while the Articles of Confederation were pending-, and be- 
fore they were finally adopted, a convention was held at 
Hartford of delegates from the New England states and New 
York, which the student should not confuse with a later Hart- 
ford convention. They sent a circular letter to all the state 
legislatures and to Congress, in which they said: 

"Our embarrassments arise from a defect in the present 
government of the United States. All government supposes 
the power of coercion; this power, however, never did exist 
in the general government of the continent, or has never been 
exercised. Under these circumstances the resources and 
force of the country can never be properly united and drawn 
forth. The states individually considered, while they en- 
deavor to retain too much of their independence, may finally 
lose the whole. By the expulsion of the enemy we may be 
emancipated from the tj'ranny of Great Britain; we shall 
however be without a solid hope of peace and freedom un- 
less we are properly cemented among ourselves." 

In 1782 the legislature of New York asked Congress to call 
a convention to revise and amend the Articles of Confedera- 
tion, which Congress failed to do. 

IV. Lack of revenue for general government. — The same 
year, after all the other states had agreed to a measure to 
give the general government a permanent revenue from du- 
ties, the one thing absolutely needed then, Ehode Island 
unanimously rejected the plan, and thus defeated it. 

The lack of revenue bore hardest on the army, which suf- 
fered for food and clothes, and had not been paid. Early 
in 1783, a delegation of officers was sent to Congress with an 
address calling for pay due the soldiers. The delegation 
spoke very decidedly about the need of a stronger govern- 
ment. "A hoop to the barrel" was a favorite toast in the 
army at that time, meaning a stronger government. A move- 



EVENTS LEADING UP TO THE CONVENTION. 27 

ment was made in the army, instigated by other public cred- 
itors, to secure by force the payment of debts due by the 
general government. This meant a military revolution. 
Washington, by his personal influence, turned the officers 
from their purpose. The news of peace came a few days 
after, and allowed the army to disband, but not before some 
Pennsylvania soldiers had mutinied because unpaid, and had 
driven Congress from Philadelphia to Princeton. 

V. Washington's letter to the governors. — When the 
army was disbanded, Washington, in June, 1783, sent a letter 
to the governors of the states, to be communicated to the 
legislatures, in which he urged that the soldiers and other 
creditors be paid, and that a stronger government be estab- 
lished in order to secure this. This letter was published in 
the newspapers, and had great influence. Most of the legis- 
latures adopted addresses to Washington in reply. The sol- 
diers, who had been turned from mutiny and revolution by 
Washington's influence, were sent home by him as mission- 
aries in favor of a stronger union. All through, the ex- 
soldiers of the revolution were among the firmest support- 
ers of the new constitution. Washington refused to lead in 
a military revolution, but was the leader in this peaceful 
revolution. 

VI. Need of commercial power. — Next to the need of 
power in the general government to raise revenue was the 
need of power to regulate commerce, so as to protect com- 
merce and manufactures from the competition of England. 
The cities of Boston, New York and Philadelphia were spe- 
cially interested in this, and held public meetings in favor of 
giving Congress power to regulate commerce. The legisla- 
tures of several states, beginning with Massachusetts, asked 
for a convention to amend the Articles of Confederation. The 
opposition to such a movement now began to organize under 
the leadership of Eichard Henry Lee, of Virginia, President 
of Congress. 

In 1785 commissioners from Virginia and Marjiand met at 
Mount Vernon, Washington's home, and arranged a compact 



28 CIVIL GOVERNMENT. 

between the two states relating to the navigation of the 
waters common to both states. This led to a meeting of 
commissioners from the states at Annapolis, in 1786, to con- 
sider commercial regulations. 

VII. The convention called. — The convention at Annap- 
olis had representatives from only half the states. Its only 
action was to call a constitutional convention to meet at 
Philadelphia on the second Monday of May, 1787. 

Congress had claimed the legal right to propose amend- 
ments to the Articles of Confederation, but had done nothing,, 
and now declined to indorse this call. The states proceeded 
to elect delegates without regard to Congress. Virginia led 
off with a delegation headed by Washington. Other states 
rapidly followed, till finally Congress was forced to call a 
convention at the time and place already named, thus giving 
its legal authority to what was going to be done anyway. 
Khode Island alone refused to send delegates. 

Meanwhile Shay's Kebellion in Massachusetts showed the 
need of a stronger central government to support the states 
against insurrection. 



CHAPTER IV. 

THE CONSTITUTIONAL CONVENTION. 

Great were the hearts, and strong the minds, 

Of those who framed in high debate 
The immortal league of love that binds 

Our fair broad empire, state by state. 

Wide as our own free race increase, 

Wide shall extend the elastic chain. 
And bind in everlasting peace 

State after state, a mighty train. 

— W. C. Bryant. 



CONSTITUTIONAL CONVENTION. 29 

I. The Constitutional Convention. — 

The convention was composed of some of the ablest 
men in America, and was fairly representative of the 
various interests involved. The Constitution which 
they produced after four months' discussion, was in gen- 
eral upon the familiar lines upon which the state consti- 
tutions had been drawn. That is, it embodied the ideas 
and forms of English constitutional liberty, but changed 
from a monarchy to a republic. The one essential nov- 
elty, which was a necessity of the situation, was that it 
established a strong national government, without over- 
throwing the strong state governments. This was a 
new idea in civil government. This idea of a federal 
state much stronger than a mere confederacy has been 

imitated since by many nations. 

II. The convention meets. — The convention met in Phil- 
adelphia, May 14, and adjourned from day to day till a 
quorum appeared May 25, when Washington was elected the 
presiding- officer. The sessions were held in secret. 

III. The Virginia plan. — May 29, Eandolph, the governor 
of Virginia, presented the resolutions which had been agreed 
on by the delegation from that state, then the largest state in 
the Union. These resolutions were soon known as the "Vir- 
ginia plan," and formed the basis on which the Constitution 
was actually drawn. 

IV. Discussion in committee of the whole. — The next day 
Eandolph moved in committee of the whole "that a national 
government ought to be established, consisting of a supreme 
legislative, executive and judiciary." This was carried with 
little opposition. The need of a real national government 
was felt by all, and the division into departments was 
familiar to all in the state governments. The differences to 
come were on the details of the plan. % 



30 CIVIL GOVERNMENT. 

Hamilton then moved that "the right of suffrage in the na- 
tional legislature ought to be proportioned to the number of 
free inhabitants." Madison said: "Equality of suffrage 
[i. e., between states] may be reasonable in a federal union 
of soTereign states; it can find no place in a national gov- 
ernment." The question was postponed. That and the dis- 
putes over slavery caused the most serious differences in the 
convention. 

It was agreed unanimously that the national legislature 
should consist of two branches. All the states except 
Pennsylvania had two houses in their legislature. 

It was agreed, with some differences, that the lower house 
of the national legislature should be elected by the people- 
directly. 

It was agreed unanimously that the national legislature 
should at least have the powers then exercised by Congress. 
The real question was what additional powers should be 
granted; but at this time substantially the powers named in 
the Virginia plan were also agreed to, which were much 
greater than those given in the Articles of Confederation. 

In respect to the executive there were great differences of 
opinion. Finally a single executive, instead of a council of 
three, one for each section of the country, was adopted by the 
vote of seven states, just enough; Washington's vote broke 
a tie in the Virginia delegation, and thus his single vote car- 
ried this important point. A limited veto was given the ex- 
ecutive. 

The organization of the judiciary was carried without 
trouble, by leaving the question of the inferior courts to 
Congress to decide later. 

The large states demanded that they should be represented 
in the Senate in proportion to their size, to which the small 
states objected; but it was carried over their objections. 

The Virginia plan was thus substantially adopted in com- 
mitttee of the whole. Before the final vote on the proposed' 
plan as a whole, Connecticut and New Jersey each presented 



CONSTITUTIONAL CONVENTION. 31 

plans giving- the general government much less power than 
the Virginia plan did. 

Lansing, of New York, who favored the New Jersey plan, 
said: "The New Jersey system is federal; the Virginia sys- 
tem is national. In the first, the powers flow from the state 
governments; in the second, they derive authority from the 
people of the states, and must ultimately annihilate the state 
governments." 

As an offset to the New Jersey plan, Hamilton, also of 
New York, avowed his preference for the British constitution, 
but read a plan of his own, providing an executive elected 
for life, and state governors appointed by the general govern- 
ment. Pinckney, of South Carolina, also read a plan not es- 
sentially different from the Virginia plan. But the conven- 
tion, still acting in committee of the whole, adopted the 
Virginia plan as amended, by the vote of seven states — just 
enough. 

V. The Connecticut compromise. — In convention proper, 
the same ground was again gone over from June 19. The 
small states still insisted that the voting in each house of 
Congress should be done by states on the plan then in use in 
Congress, and followed in the convention itself. But as this 
would equalize the votes of the states, the large states op- 
posed it. Finally the compromise was adopted that the first 
branch of Congress should have one member for every forty 
thousand inhabitants, counting all the free persons and three- 
fifths of the rest; that in the second branch each state 
should have an equal vote, and that in return for this con- 
cession to the small states the first branch should have the 
sole power of originating taxes and appropriations. After 
a great deal of discussion and all kinds of propositions, this 
compromise was adopted, July 16, by a majority of one state. 
Madison said that from that time, when the small states 
were assured of an equality in the Senate, they exceeded all 
others in zeal for granting powers to the general government. 
It will be noticed that they were also the readiest to ratify 
the Constitution. 



■32 CIVIL GOVERNMENT. 

VI. Committee on Detail. — Additional powers of legisla- 
tion were then agreed to, and the convention put the matter 
■of making a complete constitution in the hands of a. Commit- 
tee on Detail, who followed, very largely, methods and forms 
of expressions found in the state constitutions. Printed 
copies of the Constitution as prepared by the Committee on 
Detail were provided August 6, with wide spaces for amend- 
ments. These, however, were not furnished to any but mem- 
bers, as all the proceedings up to this point had been kept 
secret from the public. 

VII. The slavery compromise. — Other changes were now 
made. South Carolina and Georgia forced the compromise 
on the slave trade by the threat that they would not ratify 
the Constitution unless they were protected against the gen- 
eral feeling in the other states, including Virginia, against 
slavery and the slave trade. This was no idle threat of the 
delegates, for it was well known that they represented their 
people on this point, and these states were absolutely needed 
to the new constitution. Without them it could not have 
been carried or ratified by the people of the states afterward. 

VIII. Election of President. — The manner of election of 
the President puzzled the convention. In some states the 
governor w T as elected by the people, but in most by the leg- 
islature. The convention was long inclined to follow the lat- 
ter method for the chief executive of the nation, but near 
the close at last adopted the plan of choice by electors, 
chosen as each state pleased, as a compromise to keep the 
^executive independent of Congress, and yet not elected by the 
people. 

IX. Closing scenes. — The article on judiciary and the rest 
-of the Constitution was adopted without serious differences. 

The last thing done was to enlarge the House of Representa- 
tives by a change from a basis of 40,000 to one of 30,000 pop- 
ulation. Washington made his only speech in the convention 
-in favor of this change. 

September 17, the Constitution was signed by most of the 
^members present. The majority of the New York delegation 



RATIFICATION OF THE CONSTITUTION. 33 

had withdrawn in disgust when the convention was half 
over, and several members, including Randolph, refused to 
sign it, because it gave too great powers to the general gov- 
ernment. 

X. The general plan of the Constitution. — The Constitu- 
tion has a regular and logical arrangement, for which we are 
indebted partly to the clear distinction between the three 
great departments of government kept in view throughout 
the whole time of the convention, and partly to the Commit- 
tee on Style, of which Governeur Morris was chairman, which 
arranged the Constitution logically, and struck out all repe- 
titions and superfluous matter, and made the language as 
precise and concise as possible. 



CHAPTER V. 

THE KATIFICATION OF THE CONSTITUTION. 

I am glad to learn by letters which come down to the twentieth of Decem- 
ber, that the new constitution will undoubtedly be received by a sufficiency 
of states to set it a going. Were I in America, I would advocate it warmly 
till nine should have adopted, and then as warmly take the other side to con- 
vince the remaining four that they ought not to come into it till the declara- 
tion of rights is annexed to it ; by this means we should secure all the good 
of it, and procure as respectable an opposition as would induce the accept- 
ing states to offer a bill of rights.* This would be the happiest turn the 
thing could take. I fear much the effects of the perpetual re-eligibility of 
the President, but it is not thought of in America, and have therefore no 
prospect of a change of that article ; but I own it astonishes me to find such 
a change wrought in the opinions of our countrymen since I left them, as 
that three-fourths of them should be contented to live under a system which 
leaves to their governors the power of taking from them the trial by jury in 
civil cases, freedom of religion, freedom of the press, freedom of commerce, 



*He evidently did not have a copy of the constitution, or he would not have 
held certain things as needed in a bill of rights which were already in the 
constitution. 

U. S. Con-3. 



34 CIVIL GOVERNMENT. 

the habeas corpus laws, and of yoking them with a standing army. That is 
degeneracy in the principles of liberty to which I had given four centuries in- 
stead of four years, but I hope it will all come about. We are now vibrating 
between too much and too little government, and the pendulum will rest 
finally in the middle.— Thomas Jeffekson, from Paris, Feb. 2, 1788. 

I. Washington's letter of transmittal. — 

September 20 the proposed Constitution, with Wash- 
ington's letter of transmittal, was read before Congress,, 
then sitting in New York. The letter stated: 

"It is impracticable in the federal government of these 
states to secure all rights of independent sovereignty to each, 
and yet provide for the interest and ^safety of all; it is 
difficult to draw with precision the line between those rights 
which must be surrendered, and those which may be re- 
served. On the present occasion this difficulty was increased 
by a difference among the several states as to their situation, 
extent, habits, and particular interests. We kept steadily in 
view the consolidation of our union, in which is involved our 
prosperity, felicity, safety, perhaps our national existence. 
And thus the constitution which we now present is the result 
of the mutual deference and concession which the peculiarity 
of our political situation rendered indispensable." 

II. Opposition of Congress. — 

There was great opposition in Congress to the proposed 
Constitution, led by Richard Henry Lee, the president of 
Congress. But after a heated contest, Congress decided to 
send the Constitution to the state legislatures to be sub- 
mitted to conventions in the several states. Lee wrote a 
series of pamphlets against the Constitution, called 
"Letters from a Federal Farmer." In reply, Madison 
and Hamilton and Jay wrote the series of pamphlets 
called "The Federalist." 



RATIFICATION OF THE CONSTITUTION. 35 

III. Delaware and Pennsylvania ratify. — Delaware acted 
as rapidly as possible, and on December 6 its convention rat- 
ified the Constitution unanimously. 

In the Pennsylvania legislature the time for adjournment 
had almost come before the action of Congress was received. 
The opposition broke a quorum by staying away from the 
closing sessions, but the people of Philadelphia captured two 
country members and brought them by force to the state 
house to make a quorum by their presence, although they re- 
fused to vote, so that the majority could pass the act for a 
convention. The same division was reflected in the vote in 
the convention on December 12, which was 46 to 25. The op- 
position came from the frontier west of the Susquehanna. 
The minority refused to sign, and published a remonstrance. 
A little later the Whisky Rebellion was attempted by the 
same people who now opposed the Constitution. 

IV. New Jersey and Georgia ratify. — New Jersey ratified 
the Constitution unanimously December 18, being, like Dela- 
ware, a small state. 

Georgia ratified it unanimously January 2. Georgia was 
then a small state, but in the convention its delegation had 
voted with the large states on the ground that the immense 
territory of this state, then stretching west to the Mississ- 
ippi, would make them a large state in population soon. But 
Georgia needed the aid of a strong general government to 
protect its southern and western border against Spain, which 
then held all the Gulf coast and all west of the Mississippi. 

V. Connecticut ratifies. — Connecticut ratified January 9, 
by a vote of 128 to 40. Connecticut was at this time of mod- 
erate size, and on all questions between the large and small 
states its delegation had been inclined to a medium course. 
They had proposed the compromise of giving the lower house 
to popular vote according to numbers, and the upper house 
to equality between the states. Some echoes- of Shay's Re- 
bellion in the Connecticut valley had spread beyond Mass- 
achusetts and led many farmers in the neighboring state to 
fear a strong government. 



36 CIVIL GOVERNMENT. 

VI. Massachusetts ratines. — The Massachusetts conven- 
tion, after a long* and careful consideration, ratified the Con- 
stitution by 187 to 168, but proposed amendments to it em- 
bodying a Bill of Bights. Except for that recommendation, 
it would have been defeated. The opposition came from the 
back country. Both in Massachusetts proper and in Maine, 
then a part of Massachusetts, the commercial and manu- 
facturing sections were strongly for the Constitution, and 
the agricultural sections mostly against it. Shay's Eebellion 
added intensity to the feeling. Several of the members of the 
convention had been in that rebellion a little over a year be- 
fore, and now voted against a strong national government, as 
they had fought against a strong state government. 

VII. Maryland and South Carolina ratify. — In Maryland 
the opposition in the legislature debated the Constitution, 
aided by some of the Maryland delegates to the national con- 
vention, and secured a delay of six months before calling the 
convention. But this gave opportunity for a thorough can- 
vass of the people by both sides, and the convention ratified 
the Constitution April 25, by vote of 63 to 11. 

There was a similar delay in South Carolina, with a like 
result. Batification took place May 23, by a vote of 149 to 73. 
The opposition was in the back country. 

VIII. Virginia ratifies. — The decisive contest was fought 
in Virginia, where were the leaders of both sides. Washing- 
ton and Madison for the convention were opposed by Eichard 
Henry Lee and Patrick Henry against it. Elsewhere the bus- 
iness and professional men were almost unanimously for the 
Constitution; but in Virginia they were divided. The oppo- 
sition had hoped to make a Southern Confederacy, but the 
action of South Carolina had destroyed that hope. The in- 
terest in the Virginia convention was so great that the Phil- 
adelphia papers sent short-hand reporters to take the debates, 
an unheard of thing- in those days. The debates lasted three 
weeks. At last, June 25, the convention ratified the Consti- 
tution by a vote of 89 to 79. The opposition came from the 
western part of the Atlantic slope and from 'Kentucky, then 



RATIFICATION OF THE CONSTITUTION. 37 

a part of Virginia. The older settled parts along the Ches- 
apeake and Potomac and the Shenandoah valley supported 
the Constitution. Virginia recommended a Bill of Eights to 
the first Congress, to be proposed as amendments. Without 
this, the Constitution would probably not have been ratified 
by Virginia. 

IX. New Hampshire ahead of Virginia. — The convention 
of Virginia supposed that they were the ninth state, and that 
they therefore put the Constitution into active life; but the 
New Hampshire convention had met, and adjourned to con- 
sult with their constituents. A majority had been instructed 
to vote against the Constitution, but its friends had converted 
several members, and they had to have new powers from 
their towns. With these new powers, on June 21 they rat- 
ified, 57 to 46. They took pains to insert in the record that 
the vote was taken at one o'clock in the afternoon, that in 
case Virginia should ratify the same day at a later hour they 
could hold the honor of being the ninth state. 

X. New York ratifies unwillingly. — In New York the in- 
terior was unanimously against the Constitution, because it 
abolished the state custom house, by which the state govern- 
ment was supported without direct taxes, at the expense of 
the people of neighboring states, who had to pay higher for 
imported goods. For that very reason New Jersey had been 
unanimously in favor of the Constitution. But the people 
of New York city and the neighborhood were strongly for the 
Constitution, because their rising commerce needed the pro- 
tection of a strong national government. New York was the 
place where Congress then met, and a number of the mem- 
bers of Congress worked with the collector of customs of 
New York to influence New York and other states against 
the Constitution. As a part of the scheme of the opposi- 
tion, the legislature called the convention late. The large 
majority of the delegates were opposed to the Constitution, 
and Governor Clinton, who was opposed to it, was made pre- 
siding officer. But the ratification of Virginia, making the 
tenth state, broke the plans of the opposition. Nine states 



38 CIVIL GOVERNMENT. 

would set up the new government anyway, and the opposi- 
tion did not really dare to stand out. The attempt was made 
to ratify with the reserved right to the state to withdraw. 
Hamilton, who was a member of the convention sitting at 
Poughkeepsie, wrote to Madison, by this time again in his 
place in Congress at New York, on this point, and Madison 
wrote back a letter to be read to the convention, that a con- 
ditional ratification was no ratification at all. "The Constitu- 
tion requires an adoption in toto and forever. It has been 
so adopted by the other states." It will be noticed that this 
opinion was completely against the right of secession. On 
July 26 the Constitution was ratified by New York by a vote 
of 30 to 27, by a compromise agreeing to a resolution that 
a letter be sent to all the state legislatures, recommending 
another convention to act on proposed amendments. 

XI. North Carolina reluctantly falls into line. — The 
North Carolina convention, August 1, deferred ratifying, and 
proposed amendments. Washington advised this rather than 
have them reject the Constitution. The next year, Nov. 21, 
1789, North Carolina ratified, but not in time to take part in 
the first election of President. 

XII. Rhode Island forced to ratify. — Ehode Island had 
persistently refused to send delegates to the convention, and 
refused to take any action in favor of the Constitution. 
Among other reasons, was the local fight over the issue of 
paper money by the state, in which the legislature had over- 
ridden the supreme court. The people of Ehode Island 
<3lung to paper money as a remedy for hard times, and this 
was one of the things on which the convention had been 
nearly unanimous. The experience of the irredeemable and 
worthless continental currency, besides similar state issues of 
paper money, had convinced most people that paper money 
ought to be forbidden, as it was supposed to be by the Con- 
stitution. This, with other reasons, made the majority of 
the people of Ehode Island who favored state paper money 
oppose the Constitution. It was not until the new Congress 
in session at New York sent them word that they would be 



RATIFICATION OP THE CONSTITUTION. 39 

compelled to pay their share of the Revolutionary War debt, 
and that their commerce would be shut out from United 
States ports by prohibitory duties if they staid out of the 
Union, that Ehode Island gave up and came into the new 
Union by ratifying the Constitution, May 29, 1790. 

XIII. The new government organized. — As soon as the 
ninth state ratified the Constitution, Congress proceeded to 
make arrangements for putting the new government into 
operation. Elections were held for Presidential electors, and 
for Senators and Eepresentatives, and March 4, 1789, was set 
as the day on which the new government should be or- 
ganized, and New York as the place. Meanwhile two more 
states had ratified the Constitution, so that only North Car- 
olina and Rhode Island still stood out. The government did 
not actually go into operation on March 4, owing to the dif- 
ficulties of traveling in those days. But Congress met, and 
waited until April 1 for a quorum. April 6, the electoral 
votes for President and Vice-President were counted by a 
President of the Senate, (John Langdon, of New Hampshire,) 
who was elected for that purpose by the Senate. John 
Adams entered on his duties as Vice-President April 21, and 
George Washington as President April 30. 

XIV. The Bill of Rights added. — The first Congress, un- 
der the lead of Madison, proposed, and the state legislatures 
adopted, a series of amendments as a Bill of Rights. This 
Bill of Bights had been promised by the friends of the Con- 
stitution as a condition of its ratification by the two lead- 
ing states, Massachusetts and Virginia, and their adoption, 
therefore, completed the history of the ratification of the 
Constitution. 



40 CIVIL GOVERNMENT. 



CHAPTER VI. 



THE INFLUENCE AND GKOWTH OE THE 
UNITED STATES CONSTITUTION. 

I. Effect of our Constitution on Europe. — 

The United States was the great pioneer in the line 
of written constitutions. The written constitutions of 
European and American countries have all been made 
since ours, and many of them have been expressly mod- 
eled after ours. 

In 1783 Franklin, then ambassador to France, had all 
our constitutions translated into French and published. 
In 1787 the new Constitution for the United States was 
published in France. These two publications attracted 
deep interest in France, and in Europe generally. They 
led to a great deal of discussion. And the idea of a 
fundamental written law formulated by the nation itself f 
and designed to protect it from the abuses of despotism, 
soon commended itself to all thinkers. And from this 
time on began the era of written constitutions as safe- 
guards of liberty. 

At a later date the federal idea was imitated in many 
governments, both republican and monarchical. Among 
these are Switzerland, which changed from a loose con- 
federation to a federal republic; the Empire of Ger- 
many, which is a federal state organized out of the 
nearly independent states of Germany; and the Domin- 



INFLUENCE AND GROWTH OP THE CONSTITUTION. 41 

ion of Canada, which is a federation of colonies. The 
idea of a federal union, not a mere confederation, was 
original in the United States Constitution, and was a 
new discovery in the art of government. 

II. The unwritten Constitution. — 

The only effective constitution is not a form of words 
on paper, but the settled convictions of the people, ex- 
pressed in their political habits and ideas. As these 
slowly change from time to time, the real constitution 
changes. In the century since the Constitution was 
adopted it has been changed not only by the formal 
amendments, but much more by the progress of thought, 
which has changed the interpretation and the applica- 
tion of the original language. 

The two great lines of change have been the demo- 
cratic movement and the national movement. The dem- 
ocratic movement took possession of the general govern- 
ment under Jackson. Before and after that time there 
were a series of changes that reorganized the state gov- 
ernments. The property qualifications for voting and 
holding office were removed, so that laboring men, as 
well as the wealthy and the middle classes, could have 
a voice in the government. This, of course, affected 
the elections for ^Representatives in Congress and for 
Presidential electors, as well as the state elections. 
County and state officers in many states were also elected 
by the people, instead of being appointed by the legis- 
lature or the governor. This made local self -govern- 



42 CIVIL GOVERNMENT. 

ment a primary school for voters, so that they voted more 
intelligently on national matters. 

The civil war brought with it the issues of slavery 
and of secession. Both were destroyed by the war. 
The abolition of slavery changed the basis of represen- 
tation in the House of Representatives and in the elec- 
toral college, giving the South a larger vote in Congress 
and for President. Secession was effectually killed, and 
now North and South both favor greater power for the 
national government than Washington would have ven- 
tured to urge. The national interpretation of the Con- 
stitution culminated in the civil war, and the triumph of 
the national government over the seceding state govern- 
ments. The tendency now is against any further in- 
crease of power of the national government. 



Ifcrt II. 



« 



Hbe ©cgant3atton of Congress; 



There the common sense of most shall hold a fretful realm 

in awe, 
And the kindly earth shall slumber, lapt in universal law. 

— Tennyson. 

And sovereign Law, the state's collected will, 
Sits empress, crowning good, repressing ill. 

— Sir William Jones. 






Sec. 1.] IN WHOM LEGISLATIVE POWER VESTED. 45 



ARTICLE I. 

SECTION I.— IN WHOM THE LEGISLATIVE POWER IS 
VESTED. 

All legislative powers herein granted shall be vested in a Congress 
of the United States, which shall consist of a Senate and House 
of Representatives. 

I. Departments of government. — 

The government of the United States is divided into 
three departments, Legislative, Executive, and Judicial. 
The legislative department is that part of the govern- 
ment which makes the laws; the executive is that part 
which carries out and enforces the laws; and the judicial 
is that part which applies and interprets the laws. 
These departments are not kept quite distinct, but, as we 
shall see, the legislative department exercises some 
judicial functions, and the executive exercises some leg- 
islative functions. But these are exceptions to the gen- 
eral rule. Of these three departments the legislative is 
the most important and has the most power. It there- 
fore needs to be guarded with the greatest care, to pre- 
vent its usurping power. For this reason it is divided 
into two houses, that each may be a check upon the 
other; for this reason, the President has a veto; and for 
this reason, the members of the lower house are re-elected 
frequently, to make them feel their responsibility to the 
people. By these expedients, the legislative department 



46 CIVIL GOVERNMENT. [Art. I. 

is restrained from usurping power that does not belong 
to it. 

II. Why there are three departments. — In this division 
of the powers and duties of government, the framers of our 
Constitution followed the form to which the people of the 
United States had always been accustomed. The govern- 
ment of England was divided into these three departments. 
The legislative power was vested in the Parliament, con- 
sisting of a House of Lords and a House of Commons; the 
executive power was vested in the King and his Cabinet min- 
isters; and the judicial power was vested in the judges. This 
division of powers was not exact and logical, but each branch 
of government exercised some powers that logically would 
belong to the others, because it had been found in practice that 
it worked Avell so. The King had a legislative power in the 
veto, as the President also has; the House of Commons had 
a judicial power in presenting impeachments, and the House 
of Lords in trying them, just as the House of Representatives 
and Senate now have. 

The colonies had naturally adopted forms of government 
not differing much from that of England, and had found them 
to work well. And when a national government for the United 
States was formed, the same division of powers was adopted 
without any serious question, because the people were ac- 
customed to it, and because experience had shown it to be 
the best way to divide the powers of a government. 

As long as the United States was only a confederation of 
semi-independent states, a congress of delegates was enough 
without an executive or a judiciary. But as soon as the 
United States was made a nation, the three departments of 
government were made necessary. 

III. All constitutional governments have this division 
of power. — All constitutional governments, whether republics 
or limited monarchies, now have the same division of the 
powers of government between the legislative, the executive 
and the judicial departments. In most of these governments 



Sec. 1.] IN WHOM LEGISLATIVE POWER VESTED. 47 

there is a conscious imitation of either the English or the 
American plan of government, and their constitutions are 
modeled pretty closely upon these. This is natural, as the 
Engiish and the American governments were the first suc- 
cessful attempts at representative government in the mod- 
ern sense of the word. 

Before the American Revolution, Montesquieu, a celebrated 
French writer, in his "Spirit of the Laws," had taken the 
English government as the greatest free government then ex- 
isting, and had held up its division of the forms of govern- 
ment between the legislative, executive and judicial depart- 
ments as the ideal. Some of the leaders of the Constitu- 
tional Convention were familiar with this book. Blackstone's 
Commentaries, which was then and still is a very important 
authority on English law, insists on the same division of 
powers as necessary to a free government. 

IV. Congress. — 

The name Congress was the name given to the dele- 
gates from the colonies under the Articles of Confedera- 
tion. This name was retained for the legislative body 
of the United States under the Constitution. The 
names Senate and House of Representatives were in use 
in several of the state legislatures, and are taken from 
them. 

V. General plan of this article. — 

This article is put first, because it is the most import- 
ant and the longest article in the Constitution. A re- 
publican government is a government of laics, not a gov- 
ernment of men. And therefore in such a government 
the most important part is to make the laws, which is- 
the duty of the legislative department of the govern- 



48 CIVIL GOVERNMENT. [Art. I. 

ment. Laws must be made by the legislative depart- 
ment before they can be executed by the executive de- 
partment, or before cases can arise under them to be 
brought before the judicial department. 

VI. Division of this article. — This article is divided into 
ten sections, as follows: 

1. States in whom the legislative power is vested. 

2. Treats of the House of Eepresentatives. 

3. Treats of the Senate. 

4. Treats of the elections and sessions of Congress. 

5. Treats of the powers of each honse separately. 

6. Treats of the privileges of members. 

7. Treats of the process of making laws. 

8. Treats of the powers of Congress. 

9. Treats of the prohibitions on Congress. 
10. Treats of the prohibitions on the states. 

Of these the first seven sections deal with the organization 
of the legislative department, and the other three with the 
powers of legislation. Each section is subdivided into 
•clauses. 

VII. Is it best to have two houses? — Bicameral legisla- 
tures (that is, legislatures composed of two chambers) have 
been generally adopted in all the representative governments 
which have imitated the English and American models. 

The legislatures of early republican France were sometimes 
composed of one house and sometimes of two houses. Penn- 
sylvania at the time of the adoption of this Constitution had 
a legislature of one branch only. Franklin, who had been 
President of Pennsylvania, that is governor elected by the 
legislature, from his experience opposed a legislature so or- 
ganized. It is reported that when asked during the session 
of the Constitutional Convention which plan he favored, he 
poured out some tea from his teacup into the saucer, and 
said that two houses were necessary for the same reason 
as a cup and saucer, in order to allow hot legislation to cool. 



JSeC. 2.] HOUSE OP REPRESENTATIVES. 49 

SECTION II.— THE HOUSE OF REPKESENTATIVES. 
Clause 1. — Organization. 

The House of Representatives shall be composed of members chosen 
every second year by the people of the several states, and the 
electors in each state shall have the qualifications requisite for 
electors of the most numerous branch of the state legislature. 

I. Representatives are chosen by the people. — 

In a free country the people govern. Even in a lim- 
ited monarchy the representatives of the people have 
some voice in the government. In a republic all officers, 
in one sense, are representatives of the people, for they 
are chosen directly or indirectly by the people, and they 
-are responsible to the people. 

But in a special sense the members of the lower house 
of Congress are called Eepresentatives, because they 
specially represent the people. Each Representative is 
chosen to represent the people of his state or district. As 
the people cannot all go to the capital and help to make 
laws, certain persons are chosen to do the work of legis- 
lation for them. 

If each Representative represents his state or district, 
then all together will represent the people of the United 
States. If the people of a district are divided on cer- 
tain questions, then their Representative will usually rep- 
resent the majority of the people of his district. In- 
deed, he will be chosen over his competitors for the very 
reason that he does represent the majority of his 
district on the leading questions of the day. And a 

U. S. Con.-4. 



50 CIVIL GOVERNMENT. [Art. I. 

majority of the House of Eepresentatives will thus be 
almost certain to represent a majority of the nation on 
all the leading questions of the day. 

II. They are chosen for a short term. — 

Representatives are chosen for two years, so that they 
may be responsible to the people. If a Representative 
does not truly represent in Congress the people of his dis- 
trict, they need not have him as their Representative 
longer than two years. Every two years the people 
have an opportunity of choosing Representatives anew.. 
It is not meant that a new person should be chosen every 
two years, but only that the people should have an op- 
portunity of indorsing or of rejecting their Representa- 
tive every two years. 

III. Qualifications of voters left to the states. — 

"When the Constitution says that Representatives shall 
be chosen by the people of the several states, it means 
by the voters, as representing the people. As a fact, 
not more than one-fourth of the people are actual voters.. 

When the Constitution was adopted, the states re- 
quired different qualifications of voters, as they still do. 
The United States establishes no uniform qualification 
for voters, but leaves that mattter to the several states. 
Each state, then, in fixing the qualifications required of 
those who vote for the lower house of its legislature, 
also gives the same persons the right to vote for members 
of the lower house of Congress. 



Sec. 2.] HOUSE OF REPRESENTATIVES. 51 

IV. Two restrictions on state power in determining who 
shall vote. — Two restrictions have since been added. By the 
Fifteenth Amendment, negroes cannot be forbidden to vote 
because they are negroes. Any reason which would dis- 
qualify a white person will also disqualify a negro, but no 
other reason will. This provision affects elections for Rep- 
resentatives, as it does all other elections, state and national. 

And by the Fourteenth Amendment it is provided, that 
where a state excludes any considerable part of its inhab- 
itants who are male citizens of the United States over twenty- 
one years old, for any cause except crime or rebellion, that 
the number of representatives to which that state is entitled 
shall be proportionately diminished. This was intended to 
prevent states from disfranchising negroes; but it would also 
work against a property or educational qualification. It vir- 
tually establishes manhood suffrage throughout the United 
States. No case has ever arisen under this amendment by 
which the representation of a state has been diminished. 

V. Disputed questions. — 1. Ought a Representative to vote 
as the majority of his constituents icish? There are three ques- 
tions involved, (a) the legal power, (&) the inducements to 
the Representative, (c) the moral right. 

(a) The legal power is plain. Once elected and sworn in,, 
no legal power can coerce a Eepresentative to vote except as 
he himself chooses. He is absolute master of his vote. 

(&) But powerful inducements are put before him to de- 
termine his vote. There is first his past record, with which 
he wishes to be consistent if possible; and his pledges to his 
constituents expressed or implied in his acceptance of a nom- 
ination by a certain partj'. There is, second, his present re- 
lations to personal and political friends at home, and in Con- 
gress, whose friendship he wishes to retain, and whose help 
he expects to ask for in projects of his own. This is made 
very powerful by the institution of the caucus. And last, but 
not least, are his hopes for his political future, which will 
depend largely upon his votes in Congress. These induce- 



52 CIVIL GOVERNMENT. [Art. I. 

ments generally cause Eepresentatives to follow either their 
party leaders or the expressed wish of their constituents. 

(c) But the moral question is a harder one to answer. 
Usually it is the obvious duty of a Representative to vote 
as the majority in his district wish him to vote. But there 
may come occasions when he ought to go contrary to his 
constituents. He ought not to vote for injustice or dishon- 
esty because his constituents demand it. Nor ought he to 
vote for anything contrary to the real interests of the nation 
out of a narrow and selfish policy. He is legislating not 
merely for his district, but also for the nation, and above all 
for truth and justice. 

2. Should Representatives be changed frequently? It is very 
poor policy for the people of any district to change their 
Kepresentatives often or for frivolous reasons. The longer a 
Eepresentative is in Congress, the more influence he gains 
there. It is almost impossible for a Eepresentative in the 
first term of his office to do more than vote. The real work 
of Congress is done in the committees, and members win 
their places on important committees by long service more 
than by ability. The longer a district sends a man of ability 
and integrity to Congress, the more influence he, and there- 
fore his district, will acquire over the business transacted in 
the House. 

It is one of the sophistical maxims of our politics, that 
"rotation in office" is a good thing. It is a good thing for 
the politicians, because it gives more of them a chance to get 
positions, but it is not a good thing for the people, who are 
worse served thereby. Eotation of Eepresentatives is only 
a good thing where a Eepresentative is corrupt or incompe- 
tent, or fails to represent his district on the great questions 
of the day. 



Sec. 2.] HOUSE OF REPRESENTATIVES. 53 

Clause 2. — Qualifications oe Representatives. 

No person shall be a Representative who shall not have attained 
the age of twenty-five years, and been seven years a citizen of 
the United States, and who shall not, when elected, be an inhabi- 
tant of that state in which he shall be chosen. 

I. Age. — 

A Representative in Congress must be at least twenty- 
five years old. The object of requiring this is to secure 
a little more maturity of character and experience of 
political life than is required of a voter. Most of our 
Representatives are much older than twenty-five. In 
the British Parliament a member of either house must 
be twenty-one years old. The same age is required in 
most of the state legislatures. 

II. Citizenship. — 

A Representative in Congress must have been at least 
seven years a citizen of the United States. A natural 
born citizen will of course have been twenty-five years 
a citizen when he reaches the age of twenty-five. But a 
naturalized citizen must have been naturalized at least 
seven years, whatever his age, before he can be a Repre- 
sentative in Congress. 

As the least time under our naturalization laws in 
which a foreigner can become a citizen is five years, it 
follows that the least time in which a foreigner, after 
reaching this country, can become a Representative, is 
five plus seven, or twelve years. The reason for requir- 
ing so long a citizenship is in order that the naturalized 



54 CIVIL GOVERNMENT. [Art. I. 

citizen may become familiar with our institutions, and 
outgrow at least in part the political ideas he may have 
brought from another land. 

III. Inhabitancy. — 

A Representative must be, when he is elected, an in- 
habitant of the state from which he is chosen; that is, 
he must live in it. 

It is not necessary that a Representative should have 
lived any time in the state from which he is elected. 
But he must be an inhabitant of that state when elected. 

But it is not required that a Representative shall be 
an inhabitant of the district from which he is elected. 
Although the usual practice is to elect from each dis- 
trict an inhabitant of that district, there have been sev- 
eral cases of Representatives being elected who were not 
inhabitants of their districts. 

The reason for requiring the Representative to be an 
inhabitant of the state, is that the Representative may 
be familiar with the local interests and needs of his state. 

In Great Britain no qualification is required in regard to 
residence, and every House of Commons contains many mem- 
bers who do not reside in the county or borough for which 
they are elected. The same is the case in France, and in 
most countries which have representative governments. 

IV. Disqualifications. — 

The Constitution also prescribes the following disqual- 
ifications: 



Sec. 2.] HOUSE OF REPRESENTATIVES. 55 

1. ISTo person holding any office under the United 
States can be a member of Congress during his continu- 
ance in office. (I, 6, 2.) 

2. No person who violates an oath to support the 
Constitution by engaging in rebellion against the United 
States can be a member of Congress, unless this disa- 
bility is removed. (Am. XIV, 3.) 

V. Some disputed questions. — The following questions 
have been raised at various times: 

1. Can a state provide additional qualifications for its Repre- 
sentatives ? No ; for that would be giving a single state the 
right to amend the United States Constitution. A state can 
no more add other qualifications than it can require less. 
This has been decided by the House of Eepresentatives, under 
the powers given it by section 5. Similar cases have been 
decided the same way by the Senate. 

2. Can a person be elected who is not twenty-five years of 
age? Yes, if he become twenty-five years of age before he 
takes his seat. And the House even went so far in one case 
as to admit a member who was not twenty-five when the 
first session of the House began. He had to wait a few weeks 
until he was of the required age, and then he took his seat. 

3. Can a person be elected a Representative who has not been a 
citizen seven years? Yes, if he shall have been seven years a 
citizen before taking his seat. 

This is on the same principle as the last case. 

4. If a Representative should remove from his state after being 
elected would he lose his seat? No; for the Constitution only 
specifies that he shall be an inhabitant of the state when 
elected. 

5. Can an ambassador be chosen to Congress while absent from 
the United States? Yes; for he has not lost his inhabitancy 
in the state from which he was appointed. 



56 CIVIL GOVERNMENT. [Art. I. 

6. If an ineligible person receives a majority of votes, does his 
competitor take Ms place? No; in that case no one is elected. 
There is a vacancy to be filled by a special election. If A 
and B are candidates, and A receives a majority of the votes 
but is not eligible for the office, he cannot take his seat. But 
B was not elected, and has no claim upon the place even if A 
is not eligible. 

7. Is a person eligible to Congress while holding a United States 
office and living at Washington or elsewhere outside of his own 
state? This turns upon the distinction between inhabitancy 
and residence, which in most cases are the same, but in this 
case are different. A clerk in the service of the United States 
at Washington, and living there, was elected to Congress, 
and the House of Eepresentatives decided that he was not 
an inhabitant of the state from which he was appointed, but 
of the District of Columbia, although he could still vote in 
the place from which he came to Washington, because he re- 
tained his residence there. The same reasoning would apply 
to all similar cases. Many such clerks and officers living in 
Washington go home to vote at each election. In the case 
of a foreign minister it was decided that he had not lost his 
inhabitancy, on account of the fiction of international law 
which makes a minister or ambassador carry the sovereignty 
of his country with him. 

Clause 3. — Apportionment oe Representatives. 

Representatives and direct taxes shall be apportioned among the 
several states which may be included within this Union according 
to their respective numbers, [which shall be determined by add- 
ing to the whole number of free persons, including those bound 
to service for a term of years, and] excluding Indians not taxed, 
[three-fifths of all other persons]. The actual enumeration shall 
be made within three years after the first meeting of the Con- 
gress of the United States, and within every subsequent term of 
ten years, in such manner as they shall by law direct. The num- 
ber of Representatives shall not exceed one for every thirty 
thousand, but each state shall have at least one Representative; 
[and until such enumeration shall be made, the state of New 



SeC. 2.] HOUSE OF REPRESENTATIVES. 57 

Hampshire shall be entitled to choose three, Massachusetts eighty 
Rhode Island and Providence Plantations one, Connecticut five, 
New York six, New Jersey four, Pennsylvania eight, Delaware 
one, Maryland six, Virginia ten, North Carolina five, South Caro- 
lina five, and Georgia three.]* 

I. The article as amended by the Thirteenth and Four- 
teenth Amendments. — If we should reject all obsolete mat- 
ter, and should change to correspond with Amendments XIII 
and XIV, this clause would read as follows: 

"Eepresentatives shall be apportioned among the several 
states according to their respective numbers, counting the 
whole number of persons in each state, excluding Indians not 
taxed. But when the right to vote at any election for the 
choice of Eepresentatives in Congress is denied to any of the 
male inhabitants of such state being twenty-one years of age, 
and citizens of the United States, or in any way abridged, 
except for participation in rebellion or other crimes, the 
basis of representation shall be reduced in the proportion 
which the number of such male citizens shall bear to the 
whole number of male citizens, twenty-one years of age, in 
such state. The actual enumeration shall be made every ten 
years, in such manner as Congress shall by law direct. The 
number of Eepresentatives shall not exceed one for every 
thirty thousand, but each state shall have at least one Eepre- 
sentative." 

II. States represented according to population. 

As the Representatives are to represent the people, it 
is only fair that the states should have Representatives 
according to the people who are represented. 

In England, at the time our Constitution was adopted, the 
several counties and cities (shires and boroughs) were repre- 
sented very unequally in Parliament. In 1832, the great Ee- 
form Bill was passed, which reapportioned the members of 



♦The parts of this clause in brackets are now obsolete. 



58 CIVIL GOVERNMENT. [Art. I. 

Parliament so as to give a reasonably fair apportionment to 
the various counties and cities. Several different acts have 
since been passed making smaller changes in the apportion- 
ment. These have not been passed at any regular time, nor 
have they been based on population strictly. The English re- 
formers have not yet been able to secure for the English Par- 
liament what this section of the Constitution secures for the 
United States — a uniform basis of representation according to 
population, and regular times of readjusting the representa- 
tion as the population changes. 

III. A new principle of free government. — A great prin- 
ciple of free government is announced in this clause. Up to 
this time this principle had not been adopted by any free 
government. In the Swiss Confederation and the United 
States of the Netherlands there had been gross inequalities 
of representation. Inside the several states of this country 
the attempt at equalizing representation had not been any- 
where thoroughly carried out. Now the principle is an- 
nounced that representation shall be according to population, 
and that a frequent census shall be made to determine the 
population, and that representation shall be regularly re- 
apportioned in accordance with the changes of population. 

The result of this principle has been that as the new states 
further and further west have been admitted to the Union, 
and as they have grown in population more rapidly than the 
older states, they have gained correspondingly in representa- 
tion in Congress, till now the political power is held by the 
states which were a wilderness when this Constitution was 
adopted. 

It required a civil war in Switzerland to accomplish what 
this clause in our Constitution peacefully secured, equality of 
representation. 

IV. Uncivilized Indians and negro slaves. — But when the 
Constitution was adopted, two classes were entirely disfran- 
chised: those Indians who had not become civilized, and 
negro slaves. It was agreed by all that Indians who were 
civilized should be counted as a part of the representative 



SeC. 2.] HOUSE OF REPRESENTATIVES. 59 

population, as they were taxed and subject to the laws of 
the land. It was also agreed that uncivilized Indians should 
not be counted, as they neither were taxed nor obeyed the 
laws, but were subject to their own tribal customs. But the 
negro slaves made a more difficult problem; they were hu- 
man beings, and yet they were property. The slave states 
naturally wished to count their slaves as a part of their rep- 
resentative population, while the free states protested against 
it. A compromise was finally made upon the basis of count- 
ing only three-fifths of the slaves in the basis of representa- 
tion. 

It would have been shorter and plainer to have said, "Ac- 
cording to their respective numbers, excluding Indians not 
taxed, and including only three-fifths of the slaves." But the 
authors of the Constitution were ashamed to confess the ex- 
istence of slavery in a free country, and hoped it would soon 
die out. They therefore avoided the use of the words "slave" 
or "slavery" throughout the Constitution as they made it. 
But these words are used in the amendments adopted after 
the civil war. The words, "those bound to service for a term 
of years," mean apprentices. As they are not slaves, they are 
to be counted in full. 

Since slavery is abolished, this three-fifths rule is obsolete 
The former slave states have gained quite a number of rep- 
resentatives in consequence of the abolition of slavery. 

In the representative population, the population of the ter- 
ritories and the District of Columbia is not counted because 
they send no representatives to Congress. 

V. The census. — 

The apportionment of Representatives is made every 
ten years upon the basis of the United States census 
The first census was taken in 1790, and one has been 
taken every ten years since. Besides the actual number 
of inhabitants, a great amount of other useful informa 



60 CIVIL GOVERNMENT. [Art. I. 

tion is gathered at eacli census, and published by the- 
government. 

VI. The number of Representatives.— 

There are two limitations upon the number of Repre- 
sentatives : 

1. Each state must have at least one. 

2. There shall not be more than one to every thirty 
thousand of the representative population. 

Congress has from time to time fixed a ratio of repre- 
sentation, generally as soon as possible after each census. 
There is now a much less number of Representatives 
than one to every thirty thousand. 

If the ratio of representation were still one for every 
thirty thousand, we should have a House of Represent- 
atives containing over two thousand members, a num- 
ber too large to transact legislative business. 

VII. Territorial Delegates. — 

Under the Constitution the House of Representatives 
is composed of members from the states only; but each 
organized territory has been allowed to send a Delegate, 
who has no vote, but who can speak on matters affecting 
the interests of his territory. 

VIII. Congressional districts. — 

The Constitution says that Representatives shall be 
chosen by the people of the several states. And it also 
states how they shall be apportioned among the several 



See 2.] HOUSE OF REPRESENTATIVES. 61 

states. The Constitution treats each state as a political 
unit. Each state is to have so many Representatives, 
according to its population. But how these Represen- 
tatives are to be apportioned within each state, was for 
:a long time left entirely to each state legislature to 
determine. 

As a rule, the state legislature divided the states into 
as many Congressional districts as each state had Rep- 
resentatives, and the people of each district elected one 
Representative. 

But in some cases, one or more extra Representatives 
were elected "at large," that is by the people of the 
whole state. 

But under the law as it now stands, each state leg- 
islature must every ten years divide the state into Rep- 
resentative districts, as many as the state has Represent- 
atives, so that one Representative shall be elected from 
each district. If after any census a state is entitled to 
additional Representatives, and the legislature fails to 
reapportion the state into Congressional districts, then 
the additional Representatives are elected at large, that 
is by the whole state. 

IX. Gerrymandering. — The "gerrymander" is a political 
device to so arrange the districts as to give an unfair advan- 
tage to one political party. This may be done either by mak- 
ing the districts of unequal population or by making them 
not of compact and contiguous territory, so that the majori- 
ties of the one party shall be massed in one or two districts, 
leaving all the rest of the districts to have moderate majori- 
ties for the other party. State legislatures have frequently 



62 



CIVIL GOVERNMENT. 



[Art. f. 



unfairly "gerrymandered" their states, both for Congressional 
apportionment and for the legislative apportionment. 

X. The growth of the United States. — The growth of the 
United States in population and wealth has been one of unex- 
ampled rapidity, as the following table will show: 



Census of 


Population. 


Ratio of 
Representation. 


No. of 
Represen- 
tatives. 


1790 


3,929,214 

5,308,483 
7,239,881 
9,633,882 
12,866,020 
17,069,453 
23,191,876 
31,443,321 
38,558,371 
50,155,783 
62,622,250 


33,000 

33,000 

35,000 

40,000 

47,700 

70,680 

93,420 

127,381 

131,425 

151,912 

173,901 


105 


1800 


141 


1810 


181 


1820 


212 


1830 


240 


1840 


223 


1850 


237 


I860 


243 


1870 


293 


1880 


325 


1890 


356 



The population given is that of the whole United States, not 
merely the representative population. 

The ratio of representation and the number of representa- 
tives is that based on the census named. But the House 
elected under any ratio of representation does not actually 
begin until three years after the census is taken. Thus the 
population tables of the census of 1890 were not reported to 
Congress till 1891. The apportionment was made, and an 
election was held under it in November, 1892, and the Con- 
gress then elected began March 4, 1893. If this Congress had 
not been called in special session in August, it would have 
been December, 1893, the time of the first regular session, 
when the first Congress elected under the census of 1890 met. 



XI. Taxation on same basis as Representation. 

The Revolutionary War had just been fought on the 
cry of "No taxation without representation." The 
authors of this Constitution were therefore led to place 
direct taxation on the same basis as representation. 



Sec. 2.] HOUSE OF REPRESENTATIVES. 63 

A state could be taxed only because it was represented, 
and only in such proportion as it was represented. 

To still further secure this, it was provided (in section 
7 of this article) that all bills for raising revenue must 
originate in the House of Representatives, the house in 
which the states are represented according to population. 

Clause 4. — Vacancies. 

When vacancies happen in the representation from any state, the 
executive authority thereof shall issue writs of election to fiU such 
vacancies. 

I. How made. — 

A vacancy may be created by death, by resignation, 
by expulsion, by accepting an office under the United 
States, or by the election of an ineligible person. 

II. How filled.— 

In case of a vacancy, the governor of the state from 
which the vacancy occurs calls a special election. The 
power which can originally elect can also fill a vacancy 
— that is, the people of the district. The person then 
elected does not serve full two years, but only the un- 
expired part of the term. 

Clause 5. — Sole Powers oe the House. 

The House of Representatives shaU choose their Speaker and other 
officers, and shall have the sole power of impeachment. 

I. Speaker of the House. — 

The presiding officer of the House of Representatives 
is called the Speaker, in imitation of the title of the 



64: CIVIL GOVERNMENT. [Art. L 

"Speaker of the English. House of Commons, so called 
because he was their spokesman in communicating their 
wishes to the king. 

The Speaker of the House is one of the members of 
the House, and as such he can vote and speak on all 
questions. But when he takes part in the debates, he 
must call some other person to the chair. i He appoints 
all committees, and as legislation is mostly decided in 
the committee work, he has thus a great influence upon 
legislation. The real power of the Speaker is thus only 
second to that of the President. He holds his office at 
the pleasure of the House, but no instance has occurred 
of a Speaker being removed. Each new House elects 
its own Speaker. A Speaker is frequently re-elected. 

II. Other officers. — 

The other officers of the House are not members of 
the House, and are appointed and removed at the will 
of the House. They are a Clerk, Sergeant-at-arms, 
Doorkeeper, Postmaster, and Chaplain. Besides these 
there are many persons employed in various positions 
about the House. These employes are appointed by the 
Speaker, Clerk, Sergeant-at-arms, Doorkeeper, or Post- 
master, according to the nature of their duties. 

III. Power of impeachment. — 

The House of ^Representatives has also the power of 
impeachment, as the Senate has of trying all impeach- 
ments. An impeachment trial is a political trial of 
some -officer for a political offense, for the sake of remov- 



See. 2.] HOUSE OF REPRESENTATIVES. 65 

Ing him from office. An impeachment by the House 
only brings the case before the Senate. A committtee 
of the House is appointed to conduct the prosecution. 



APPENDIX TO SECTION II. 

I. Nomination of Representatives. — Any qualified person 
may be a candidate for Congress, and if he can secure votes 
enough he can be elected. Independent candidates are oc- 
casionally elected without a party nomination. But as a rule 
a candidate is nominated by a convention of his own political 
party. This convention is called by the party committee of 
that Congressional district. 

The call states the time and place of the convention, and 
the number of delegates to which each part of the district is 
entitled. As a rule these parts are counties, but in a great 
city they may be wards or precincts. In some cases the ap- 
portionment of delegates is according to population, and in 
some cases according to the number of votes for the party 
received in each county or ward at the last election. This 
is generally determined by the number of votes cast for Pres- 
idential electors or for governor, as the fairest test of the 
real vote for the party, uninfluenced by any personal or local 
considerations. The delegates for each county are elected by 
a county convention called in a similar way by the county 
committee of the party. The delegates to the county con- 
vention from each town, village or ward of a city are elected 
by the voters of the party in that local subdivision on the 
call of the local committee of the party. 

There are two methods of doing this. The original method 
is by a caucus or meeting of the voters. The voters who are 
present at the appointed time elect a chairman and a secre- 
tary, and then elect the delegates to the county convention. 
Sometimes this is done by ballot, and sometimes by acclama- 
U. S. Con.-5. 



66 CIVIL GOVERNMENT. [Art. I. 

tion. The caucus may transact other business, such as elect- 
ing a committee for the ensuing- year, instructing the dele- 
gates to vote for some special candidate, or passing resolu- 
tions expressing opinions on matters of public policy. The 
chairman and secretary give the delegates their credentials, 
that is a written certificate that they were elected as dele- 
gates. 

In some states it is provided by law that a primary election 
shall take the place of the caucuses, and in some cases pri- 
mary elections are called by the party committees, although 
not required by law. A primarj^ election is managed like any 
election, except that no one can vote who does not belong 
to the party which is holding the election, besides being a 
qualified voter in that precinct. A primary election is in- 
tended to give the voters a better opportunity to select dele- 
gates, and it is especially convenient where, as in a great 
city, there are a large number of voters. 

The Congressional District Convention meets some weeks, 
or perhaps months, before the. election, at the time and place 
named by the district committee of the party. The chairman 
of the committee usually calls the convention to order, and 
reads the call for the convention that was issued by the com- 
mittee. A temporary chairman and temporary secretary of 
the convention are then chosen, generally by acclamation. 
The usual order is then that motions are made, that the tem- 
porary chairman appoint committees on credentials, on per- 
manent organization, and on resolutions. The Committee on 
Credentials reports as soon as possible the names of delegates 
who are entitled to seats. It frequently happens that one or 
more delegates have given proxies to other persons to come 
in their places. And if some delegates are absent, and no 
one has a proxy for them, it is generally the rule that the 
other delegates from the same county or ward cast their 
votes. They do this by giving some one or more of their 
number the additional vote or votes. It is not unusual for 
one person thus to have two or more votes. These facts ar^ 
either reported by the Committee on Credentials, or motions 



Sec. 2.] HOUSE OF REPRESENTATIVES. 67 

are made in convention to authorize the proxy votes, or that 
the delegates present from such a county be authorized to 
cast the full vote of their county. 

If there are any contested seats, the Committee on Cre- 
dentials hears arguments on both sides and reports to the 
convention, which again hears arguments and decides 
whether one or the other set of delegates are entitled to seats, 
or whether the vote shall be divided between the two factions. 
In this way, it sometimes happens that there are half votes 
cast. The Committee on Permanent Organization then re- 
ports names for permanent chairman and permanent secre- 
tary, and other officers if any are wanted. Very frequently 
these are the same persons who have been temporary officers. 

Usually names of candidates for the nomination are then 
presented to the convention in formal speeches. For weeks 
and months before, this subject has been discussed all over 
the district. Sometimes it is conceded that a certain person 
shall have the nomination, and the convention is a mere for- 
mality. In such cases, the candidate is often nominated by 
acclamation. But it very often happens that several parts of 
the district each have a candidate for the party nomination. 
In that case the convention may have to take several ballots 
before any one person receives a majority of all votes cast. 
Sometimes several days are spent in this way. It is the uni- 
versal rule that a majority is required to nominate. Some- 
times before, but more often after, the nomination has been 
made the Committee on Resolutions reports a series of reso- 
lutions, expressing the political ideas of the party in that dis- 
trict. This report may be, and sometimes is, amended if not 
satisfactory, but is very generally adopted as read, because 
there is usually a general agreement among members of the 
same party. A District Committee is then elected, or ap- 
pointed by the chairman, and the convention then adjourns. 

II. Nominations for other officers. — The process of nomi- 
nating a candidate for Congress here described is essentially 
the same as that used by all parties in naming candidates for 
other offices, as far as the circumstances allow. Thus, 
county officers are nominated by a county convention, state 



68 CIVIL GOVERNMENT. [Art. I. 

officers by a state convention, and city officers by a city con- 
vention. Town and village officers are nominated by caucuses 
of the voters. The great Presidential conventions will be de- 
scribed later on. This system of party machinery has be- 
come a part of the political habits of our people. It is en- 
forced by no law, and it is modified from time to time in 
some of its details, and varies occasionally in different lo- 
calities and parties. But for over half a century this has been 
the general method of party government. The Australian 
ballot laws in many states now legally recognize party nomi- 
nations. 

The following are the principal variations of the system: 

1. The mass convention of all persons w r ho desire to attend 
a county or state convention. With a neAV party or a small 
one, this is a convenience, as it is so simple. But when a 
party grows strong and well organized, it is desirable to have 
a delegate convention, in order to give an equitable represen- 
tation to all localities. Otherwise those who live at or near 
the place of meeting could always control the convention. 

2. A written call. This is frequently used in nominating 
non-partisan candidates for a judgeship or a municipal office. 
A written call is circulated, and signed by all who wish, re- 
questing the person named to be a candidate. Under the 
Australian ballot law, now adopted in many states, no names 
of candidates are placed on the official ballot except those 
named by party conventions or those who have a certain 
number of names signed to a call. Under these laws all new 
or very small parties must have such calls signed for their 
candidates. 

III. Party organization. — The organization of each of the 
greater political parties follows the lines of the governmental 
divisions of the country. Each party has a National Commit- 
tee, composed of one or more members from each state and 
territory. The National Committee calls the National Con- 
vention, which nominates candidates for President and Vice- 
President, adopts a platform of principles, and elects a Na- 
tional Committee. The National Convention is the govern- 



SeC. 2.] HOUSE OP REPRESENTATIVES. 69 

ing body of the party. The National Committee is the ex- 
ecutive of the party, which raises funds, pays the expenses of 
the campaigns, and does what it can to secure the success 
of the party. The National Committee frequently advises the 
State Committees, but has no power over them. 

In each state there is a State Committee of each party, com- 
posed of members from each of certain subdivisions of the 
state. Most states have so many counties, and they vary so 
much in population, that the Congressional districts are often 
made the basis of membership for the State Committee. A 
State Convention is called by the State Committee as often as 
the state officers are to be nominated. The State Convention 
consists of delegates from local conventions. Usually each 
county in the state is represented according to its party 
strength. The call usually reads, "Each county shall be en- 
titled to one deleg'ate for each two hundred [or whatever 
number is taken as the basis of representation] votes cast for 
for governor at the last election, or major fraction there- 
of." And the call then gives a list of counties, with the num- 
ber of delegates to which each is entitled. But in some cases 
the representation in State Conventions is on the basis of an 
equal number from each assembly district. The one method 
gives a representation of each locality according to the total 
population, and the other method gives a representation ac- 
cording to the number of the party in each locality. There 
are arguments on both sides, but the tendency is now to rep- 
resent the numbers of the party rather than the numbers of 
the total population. 

Each county has a County Committee, and a County Con- 
vention representing the various divisions of the county, 
towns, villages, and wards of cities. The County Convention 
nominates candidates for county offices. 

In each town, village or ward of a city the caucus (or pri- 
mary election) of the voters of the party takes the place of 
the delegate convention. 



70 CIVIL GOVERNMENT. [Art. L 

SECTION III.— THE SENATE. 
Clause 1. — Organization. 

The Senate of the United States shall be composed of two Senators 
from each state, chosen by the legislature thereof, for six years; 
and each Senator shall have one vote. 

I. The Senate represents the states. — 

As the House of Representatives represents the 
people, so does the Senate represent the states. Under 
the Confederation the delegates to Congress were sent 
by the states, and not by the people. But in the Con- 
stitutional Convention, when it was decided that a true 
national government should be organized, it was claimed 
with justice that the people should be represented, and 
not the states. But the smaller states refused to part 
with the power they had. At last the compromise was 
made that the House should represent the people, and 
the Senate the states. 

This compromise was proposed in the Constitutional Con- 
vention by the Connecticut delegation, and it has therefore 
been called "the Connecticut Compromise." It is very doubt- 
ful whether the Constitution could have been adopted without 
this compromise. 

The English House of Lords is a hereditary body, except 
the bishops, who are appointed for life. The Councils in the 
colonies were appointed by the governors. Several of the 
states during the Eevolutionary War had already begun to 
elect both houses of their state legislatures. The state legis- 
latures now in every case consist of two houses, both elected 
by the people, but the upper house is always smaller in num- 
bers than the lower house, and its members are elected for 
a longer term. 



Sec. 3.] THE SENATE. 71 

The various federal governments, which have been formed 
in imitation of the American Constitution, all have two 
houses, the lower house elected by the people in proportion 
to population, and the upper house representing in one form 
or another the separate states, or provinces, into which the 
federation is divided. This is the case with the Empire of 
Germany and the Dominion of Canada, as well as with many 
republics. 

II. Equality of representation. — 

Under the Confederation each state had one vote ; and 
if the delegates from any state were equally divided, the 
state lost its vote. A large state had no more voice in 
the affairs of the general government than did a small 
state. As long as these states were each in theory a 
semi-independent sovereignty, it was fair enough that 
each should have one vote ; just as a large man or a small 
man, a rich man or a poor man have each one vote. 
And under this Constitution, as a result of the com- 
promise which left the Senate to represent the states, 
each state has an equal voice. But instead of giving 
each state one vote, with as many delegates as it pleases, 
the same end is attained in a simpler way by giving each 
state two Senators, and each Senator one vote. Under 
the present plan, if the two Senators from any state 
are opposed upon any question, instead of the state los- 
ing its vote, it has one vote on each side of that question. 

III. How chosen. — 

As Senators represent states, they are chosen by the 
government of the state — that is, by the state legislature. 
(See section 4.) 



72 CIVIL GOVERNMENT. [Art. I. 

This manner of choice also makes the office of Senator 
more dignified than that of Representative, as each Sen- 
ator represents a whole state, while most Representatives 
represent a part of a state only. 

When a state legislature wishes the Senators and Rep- 
resentatives from that state to vote in any particular 
way, it always recognizes the difference between Sena- 
tors and Representatives. The resolution which is passed 
in such a case is always to instruct the Senators and 
request the Representatives. 

IV. Term of office.— 

The term of office of a Senator is six years, three times 
as long as that of a Representative, and half longer than 
that of President. The object is to raise Senators above 
the whims and caprices of their constituents, so that they 
may consult their solid interests, rather than their im- 
mediate wishes. 

Clause 2. — Classification and Vacancies. 

Immediately after they shall be assembled in consequence of the 
first election, they shall be divided as eqaaUy as may be into 
three classes. The seats of the Senators of the first class shall be 
vacated at the expiration of the second year; of the second class, 
at the expiration of the fourth year, and of the third class, at the 
expiration of the sixth year, so that one-third may be chosen 
every second year; and if vacancies happen by resignation or 
otherwise, during the recess of the legislature of any state, the 
executive thereof may make temporary appointments until the 
next meeting of the legislature, which shall then fill such vacan- 
cies. 

I. Classification of Senators. — 

Senators are so classified that one-third of them go out 
every other year. 



SeC. 3.] THE SENATE. 75 

The Senate is thus a permanent body. There are al- 
ways two-thirds, or nearly two-thirds, of the Senators 
in office, while the House every two years is dissolved, 
and must be reorganized. 

This is accomplished by the following" process: 

1. The first Senate, which met in 1789, was divided by lot 
into three classes, as equal as possible, the first class to serve 
two years (till 1791), the second class to serve four years (till 
1793), and the third class to serve six years (till 1795). Care 
was taken that the two Senators from the same state should 
not be put in the same class, so that no state should change 
both its Senators at the same time. 

2. After the first classification, each class holds for six 
years, and Senators come in and g-o out with the class to 
which they are elected. 

3. But whenever a new state is admitted to the Union, the 
two new Senators are assigned to the next classes in order, 
so as to keep the classes as nearly equal as possible. But the 
two Senators determine by lot between themselves which has 
the longer and which the shorter term, and the length of 
term of the new Senators will depend on the length of time 
before the classes go out to which they are assigned. 

II. Vacancies. — 

A vacancy in the Senate may occur for the same rea- 
sons as a vacancy in the House. A vacancy in the Sen- 
ate is filled by the state government of the state which 
the Senator represented — by the legislature, if in ses- 
sion, or by the governor, if the legislature is not in ses- 
sion. When the governor appoints, the Senator then 
appointed only holds until the legislature can elect. 
But when the legislature elects, it is for the unexpired 
portion of the term. 



74 CIVIL GOVERNMENT. [Art. L 

Thus it often happens that a vacancy occurs in the 
Senate which is filled, first, by appointment by the gov- 
ernor for a few months, and then by election by the 
legislature for the rest of the unexpired term. But if 
the vacancy occurs when the legislature is in session, the 
governor cannot appoint a Senator, but the whole matter 
is in the hands of the legislature. 

Clause 3. — Qualifications of Senator. 

^No person shall be a Senator who shall not have attained to the 
age of thirty years, and been nine years a citizen of the United 
States, and who shall not, when ejected, be an inhabitant of that 
state for which he shall be chosen. 

The qualifications for Senators. — 

These are placed a little higher than for Eepresent- 
atives. They are: 

1. Age — thirty years. 

2. Citizenship of the United States — nine years. 

3. Inhabitancy of the state from which elected. 

The disputed questions about Eepresentatives apply also 
to Senators. (See page 55.) 

Clause 4. — The President oe the Senate. 

The Vice-President of the United States shall be President of the 
Senate, but shall have no vote unless they be equally divided. 

The Vice-President is President of the Senate. — 

In order to give the Yice-President of the United 
States something to do, he was made President of the 
Senate. As he is not a member of that body, he has no 
vote, and no right to discnss questions. But when the 
-Senate is equally divided, he has a casting vote. 



SeC. 3.] THE SENATE. 75 

It is often erroneously supposed that the President pro tern. 
of the Senate or the Speaker of the House has a casting" vote. 
This is not true. Each of these presiding- officers has one 
vote as a member of the body over which he presides, but 
no casting- vote. If in such a case the vote is a tie, it is lost, 
as it requires a majority to carry a vote, and a tie lacks one 
vote of a majority. 

The Vice-President can appoint no committees in the Sen- 
ate, because he is not elected by the Senate, and does not rep- 
resent them as the Speaker does the House. The Senate 
elects its own committees. 

The Vice-President of the United States, when acting- as 
President of the Senate, is simply a presiding officer. He puts 
motions, preserves order, and decides questions of order, sub- 
ject to an appeal to the Senate, but cannot debate or vote (ex- 
cept the casting vote). 

He has substantially the same powers as the English Chan- 
cellor has when presiding in the House of Lords. 

Clause 5. — Other Officers. 

The Senate shall choose their other officers, and also a President 
pro tempore in the abseDce of the Vice-President, or when he 
shall exercise the office of President of the United States. 

I. Other officers of the Senate. — 

The other officers of the Senate are the same as in the 
House, and are appointed and removed by the Senate 
at pleasure. But in the absence of the Vice-President, 
or when he acts as President, the Senators elect one of 
their own number as President pro tempore, that is tem- 
porary President. The custom of the Senate now is to 
elect a President pro tempore the first day of each ses- 
sion, who presides whenever the Vice-President is ab- 
sent. Whenever the office of Vice-President of the 
United States becomes vacant by death, resignation, re- 



Y6 CIVIL GOVERNMENT. [Art. I. 

moval, or promotion to the office of President, the Pres- 
ident pro tempore becomes President of the Senate; but 
he is not Vice-President of the United States, though 
often erroneously called so. 

The President of the Senate pro tempore, when acting in 
place of the Vice-President of the United States as President 
of the Senate, has the same duties as presiding" officer, but 
he has not the privilege' of the casting vote, and has the privi- 
lege of his own vote as Senator on all questions. He has 
also the privilege of speaking on any question, by calling 
some other Senator to the chair. 

II. Committees. — The committees of the Senate are elected 
by the Senate itself, according to certain customs by which 
a Senator is promoted on these committees according to his 
length of service. But the majority party claims the major- 
ity of each committee and the chairmanship of the more im- 
portant committees. 

In the House of Eepresentatives the Speaker has the abso- 
lute power to name all the committees. But the custom is 
that he shall appoint the chairman and a majority of each 
committee from his own party, which is necessarily the ma- 
jority party in the House, as it elected him Speaker, and the 
minority of each committee from the minority party. It is 
also the custom that he shall appoint to the chairmanship 
of committees and to the membership of the most important 
committees only those Eepresentatives who have been in 
Congress several terms and -who have shown marked ability. 

All bills are referred to the appropriate committees, and 
citizens interested in them may be heard before the commit- 
tees. Most of the real work of legislation is done in the 
committees. 



SeC. 3.] THE SENATE. 77 

Clauses 6 and 7. — Impeachment. 

TThe Senate shall have the sole power to try all impeachments. 
When sitting for that purpose, they shall be on oath or affirma- 
tion. When the President of the United States is tried, the Chief 
Justice shall preside; and no person shall be convicted without 
the concurrence of two-thirds of the members present. 

•Judgment in cases of impeachment shall not extend further than 
to removal from office, and disqualification to hold and enjoy 
any office of honor, trust or profit under the United States; but 
the party convicted shall nevertheless be liable and subject to in- 
dictment, trial, judgment and punishment according to law. 

I. The High Court of Impeachment. — 

As the House of Representatives alone impeaches, the 
Senate alone tries all cases of impeachment. In an im- 
peachment trial the Senate sits as a High Court of Im- 
peachment, and acts in a judicial capacity. Senators 
are therefore in such a case put upon oath or affirmation 
to try the case justly. A majority of two-thirds is 
needed to convict. "When the President of the United 
States is tried, the Yice-President or the President pro 
tempore of the Senate might be interested to have him 
•convicted, in order to succeed to the place of President. 
It is therefore provided that when the President of the 
United States is tried, the Chief Justice shall preside. 

II. Judgment in cases of impeachment. — 

As an impeachment trial is a political and not a crim- 
inal trial, the punishment is a political, not a criminal 
one. Conviction on impeachment carries with it re- 
moval from office; and the officer convicted may also be 
declared disqualified from ever holding a United States 
office again. 



78 CIVIL GOVERNMENT. [Art. I. 

If the offense is a criminal one as well as a political 
one, the political trial will not prevent a criminal trial 
also. 

See also I, 2, 5, and II, 4. 



SECTION IV.- ELECTIONS AND SESSIONS OP 
CONGRESS. 

Clause 1. — Elections to Congress. 

The times, places and manner of holding elections for Senators and 
Representatives shall be prescribed in each state by the legisla- 
ture thereof; but the Congress may at any time by law make or 
alter such regulations, except as to the places of choosing Sena- 
tors. 

I. The constitutional provisions. — 

The Constitution provides in relation to election of 
Senators and Representatives: 

1. That each state may prescribe the time and place 
and manner of holding elections for Senators and Rep- 
resentatives; 

2. But that Congress may assume control over a part 
or all of the subject, at any time; 

3. But Congress is forbidden to prescribe the place 
of choosing Senators. As these are chosen by the state 
legislatures, it was thought best to forbid Congress to 
prescribe where the election shall be held, for fear that 
Congress might prescribe that Senators should be chosen 
at some other place than the state capitol, or even out- 
side of the state altogether. 



8eC. 4,] ELECTIONS AND SESSIONS OF CONGRESS. 7.9" 

II. Provisions made by Congress. — For a long- time Con- 
gress left this whole matter to the several states, and the 
greatest variety prevailed. A part of the states elected Rep- 
resentatives in the spring, a part in October, and a part in 
November. A part of the states elected by ballot, and a part 
by viva voce vote. 

But Congress has now by law prescribed certain things 
in relation to the time and manner of these elections, leav- 
ing other questions still open. The elections of United States 
Senators have been fully provided for by act of Congress; the 
regulations respecting the election of Representatives are not 
so minute. Both are given below. 

III. Election of Senators. — Senators are chosen as fol- 
lows: 

The last session of a legislature before the term of a Sen- 
ator from that state expires is the time; and the day is the 
second Tuesday after the legislature has met and organized; 
the place, of course, is the capitol of the state, except when 
in time of public danger the legislature meets at some other 
place. Each house first votes separately by a viva voce vote. 
Next day a joint convention of both houses is held, when the 
result in each house is read. If the same person has a ma- 
jority of all the votes in each house, he is declared elected. 
But if no one has such a majority of each house of the legis- 
lature, the members of both houses in joint convention imme- 
diately proceed to vote for Senator. They must meet in joint 
convention and vote at least once each day until a Senator is 
elected. All votes must be viva voce; that is, as the roll is 
called each member of the legislature must rise in his place 
and name the person he votes for. A majority of all the 
votes cast is required to elect. 

In case of a vacancy, the legislature proceeds to fill the va- 
cancy in the same way, on the second Tuesday of the session 
after the vacancy occurs; or if the legislature is in session 
when the vacancy occurs, on the second Tuesday after it is 
notified of the vacancy. 



$0 CIVIL GOVERNMENT. [Art. I. 

IV. Election of Representatives. — Eepresentatives must 
be elected from districts of contiguous territory on the Tues- 
day after the first Monday of November in each even-num- 
bered year. All votes must be by ballot. 

In a few states which found it difficult to change their state 
constitution, Congress suspended the operation of this law, 
but as soon as possible all the states must arrange to hold 
their election for Eepresentatives on the Tuesday after the 
first Monday of November. 

Clause 2.— Sessions oe Congeess. 

The Congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they 
shall by law appoint a different day. 

I. When Congress meets. — 

Congress must meet at least once each year. As a 
Congress lasts two years, each Congress has at least two 
sessions, and may have more. 

The regular sessions of Congress begin on the first 
Monday of December each year. ' The first regular ses- 
sion of Congress lasts until the adjournment some time 
in the next summer, and is called the long session. The 
second regular session lasts until the fourth of March, 
at noon, when the terms of office of all the Representa- 
tives and of one-third the Senators expire. This is 
therefore called the sliort session. 

A special session may be called by the President for 

-extraordinary reasons. (II, 3.) 

A session of Congress may be ended in one of three ways: 

1. The two houses may agree to adjourn. 

2. The term for which all the Eepresentatives and one-third 
of the Senators were elected may expire. This happens every 
•odd vear on the fourth of March. 



SeC. 4.] ELECTIONS AND SESSIONS OP CONGRESS. 81 

3. In case the two houses disagree in respect to the time 
of adjournment, the President can adjourn them. This case 
has never occurred, but it is provided for in the Constitution. 
(II, 3.) 

II. Where Congress meets. — 

The Constitution does not fix the place where Con- 
gress shall meet. But the place now provided is the 
capitol at Washington. But when, in case of invasion 
or contagious disease, it would be unsafe for Congress 
to meet at Washington, the President is authorized by 
law to convoke Congress at some other place. Or Con- 
gress, when in session, has the right to adjourn to meet 
at some other place, if it so chooses. But since the seat 
of government was established at Washington Congress 
has always met there. 

The Continental Congress met in the following places: Phil- 
adelphia, 1774-76; Baltimore, 1776; Philadelphia, 1777; Lan- 
caster and York, 1777; Philadelphia, 1778-83; Princeton, 1783; 
Annapolis, 1783; Trenton, 1784; New York, 1785-89. The Con- 
stitutional Convention was held at Philadelphia in 1787; this 
Constitution was ratified in 1788, and went into effect in 1789. 
The seat of government since then has been: New York, 
1789-1790; Philadelphia, 1790-1800; Washington, 1800 to the 
present time. 

III. Name of each Congress. — It is usual to refer to the 
successive Congresses by their number. Thus the Congress 
which existed from 1789 to 1791 is called the First Congress, 
and the Congress which existed from 1897 to 1899 is called 
the Fifty-fifth Congress. 

IV. The Halls of Congress. — In one wing- of the capitol 
at Washington is the Senate Chamber, and in the other wing 
is the House of Eepresentatives. Each room is fitted up with 

U. S. Con.— 6. 



82 CIVIL GOVERNMENT. [Art. I. 

a desk for each, member, an elevated seat for the presiding- 
officer, desks for the clerks, and galleries for spectators and 
reporters. There are also a large number of committee rooms 
in the capitol. 

There are some very material differences between the rooms 
in which the English Parliament meets and those in which 
the American Congress meets. In Congress each member has 
a desk at which he can write letters or do other work while 
the business is going on. There is no such arrangement in 
Parliament. The consequence is that members of Parliament 
have nothing to do but to attend to the debates and votes; 
but also that most of them do not attend regularly. Much 
business is done in Parliament with a very small number of 
members present, which •would not be a quorum with us. 
And when it is necessary to have a full attendance because 
there is to be a close vote on some important question, the 
"whips" of the different parties are obliged to notify all their 
supporters to be present. When there is a full attendance of 
the House of Commons, there is scarcely standing room 
enough in the hall for the members. The galleries of the 
two houses of Parliament are quite small, and it is not easy 
for a visitor to get an opportunity of seeing Parliament in 
session. The galleries of each house of Congress are very 
large, and, except on special occasions, visitors can always 
see and hear a session of Congress without any difficulty. 

The reasons for these differences are that the American 
Congress is governed by the democratic ideas, that every 
citizen has a right to know what his representatives are do- 
ing, and that these representatives should be paid for their 
time, and should be expected to give their time to the service 
of the nation; while the English Parliament is still governed 
by the aristocratic ideas, that only the select few should have 
the privilege of seeing Parliament in session, and that its 
members should be wealthy men who serve without a salary, 
and who consequently attend to public business when it suits 
them. 



SeC. 4.] ELECTIONS AND SESSIONS OF CONGRESS. 83 

V. The organization of Congress.— On the 4th of March, 
at noon, every odd year, one Congress closes its existence and 
a new Congress begins. The entire House of Representatives 
goes out of office, those members who have been reelected as 
well as those who are elected for the first time. One-third of 
the Senate also goes out of office. 

As the Senate is a permanent body, it does not need to re- 
organize when it meets. The Vice-President takes his place 
as President of the Senate, or, if he is absent, a President 
pro tempore is chosen, the new members are sworn in, and the 
Senate is ready for business. If there are two claimants for 
a seat, neither is sworn in till the case is decided by the Sen- 
ate, when the one whom the Senate decides to have been law- 
fully elected is sworn in. 

But when a new House of Representatives meets, the scene 
is different. The Clerk of the last House makes out the roll 
of the members who hold certificates of election, who are 
sworn in, and who then proceed to elect a Speaker. Some- 
times this is done at once; but sometimes, when parties are 
closely balanced, it takes weeks, and even months, to elect 
a Speaker. Until that is done, the House can do no other 
business, and has no legal organization. But as soon as a 
Speaker and other officers are elected, the House is organized 
and ready for business. 

In case there are two claimants for a seat, the Clerk puts 
upon the roll the name of the one who has a certificate of 
election from the proper state authorities, who therefore 
votes in the election of officers. But it often happens that 
when the contest for the seat is decided by the House, the sit- 
ting member is ousted and his opponent is seated. It is usual 
to vote a salary and expenses of contest to both claimants. 
Thus it is sometimes a good thing to be a defeated candidate 
for Congress. 

Although the new Congress begins March 4, and the mem- 
bers draw their salaries from that date, the actual organiza- 
tion cannot take place till the first Monday in December, un- 



84 CIVIL GOVERNMENT. [Art. I. 

less the President should call Congress together in special 
session. 

When a new President takes office, it is nsual for him to 
call a special session of the Senate alone to act on nomina- 
tions to the Cabinet and other important offices. 



SECTION V.— POWERS OF EACH HOUSE SEPARATELY. 

Clause 1. — Elections and Quorums. 

Each house shall be the judge of the elections, returns, and quali- 
fications of its own members, and a majority of each shall consti- 
tute a quorum to do business; but a smaller number may adjourn 
from day to day, and may be authorized to compel the attend- 
ance of absent members, in such manner and under such penal- 
ties, as each house may provide. 

I. Each house the judge of elections, returns, 
and qualifications. — 

In Parliament and in the state legislatures when this 
Constitntion was adopted, each house was the judge of 
the elections, returns and qualifications of its own mem- 
bers. Consequently the same power was given to each 
house of Congress. 

When it is said that each house shall be a judge of 
the elections and returns of its members, it is meant 
that each house has the power to decide whether a mem- 
ber was lawfully elected or not, or of two persons both 
claiming to be elected, to decide which one is justly en- 
titled to the seat. 

When it is said that each house shall be a judge of 
the qualifications of its members, it is meant that each 



SeC. 5.] POWERS OF EACH HOUSE SEPARATELY. 85 

house has the power to decide whether any particular 
member has the qualifications required under the Con- 
stitution. (See sections 2 and 3.) 

Taken together, these powers give each house of Con- 
gress power to decide who are its members and who are 
not. The decision of each house is final, and cannot be 
reviewed by the other house or by the courts. 

II. The process of deciding contested elections. — After 
each election for Representative, the proper officers in each 
state canvass the votes actually cast and decide which of the 
candidates are elected. A certificate of election is then given 
by the Governor or Secretary of State to the candidate who 
has the largest number of votes as decided by the canvassing 
officers. 

Should the defeated candidate claim that he was rightfully 
elected, and was cheated out of it by some fraud or mistake 
in the election or in counting the returns of the election, he 
can appeal to the House of Representatives, who will decide 
his case upon the merits. But meanwhile the person who has 
the certificate of election takes the seat, and votes. 

The process of contesting an election is now specified by 
law. Within thirty days after the result of the election has 
been declared, the defeated candidate must give notice to the 
successful candidate that he will contest his election, and 
specify the grounds upon which he will contest it. Within 
thirty days after that the successful candidate must reply, 
stating the grounds upon which he relies to support his case. 
The case then goes before some judge, who takes all the 
testimony brought by both sides and their written state- 
ments, and forwards them to the clerk of the House of Rep- 
resentatives. 

As soon as the House is organized, the Speaker appoints, 
with other committees, a Committee on Elections. All con- 
tested cases are referred to this committee, who examine the 



86 CIVIL GOVERNMENT. [Art. T. 

-evidence sent them and hear the arguments of lawyers on 
each side, and then report to the Honse which of the two 
claimants is entitled to the seat. 

The House then votes on the report, and decides which 
candidate was lawfully elected. In deciding this question, 
the Committee on Elections and the House go back of the re- 
turns, and decide on the evidence presented whether any 
illegal votes were cast, whether any mistakes were made in 
making out the returns, and so on, and then aim to decide 
according to the real wish of the people of the district with- 
out regard to legal technicalities. 

The process of deciding a contested election in the Senate 
is simpler. The question goes directly to the Committee on 
Elections, and by them is reported to the Senate, who decide 
as in the House of Eepresentatives. 

But the power to decide contested election cases has proved 
a dangerous power in the hands of a partisan majority. 
Whichever party has the majority is very apt to decide con- 
tested elections in favor of its own side, rather than in favor 
of justice. 

When the question is one of qualification, it goes to the 
Committee on Elections and then to the House. But in such 
a case there is no contest; for to prove a member-elect to be 
disqualified does not seat his opponent, but only creates a 
vacancy, to be filled in the regular way. 

It follows from this that a state may be recognized by one 
house and not by the other. But the two houses have always 
tried to work in harmony on this question. 

III. What is a quorum? — 

A quorum is a sufficient number to do business le- 
gally. 

In a large body, like either bouse of Congress, it is 
plain that it would not do to require all the members to 
be present before any business can be done. It would 
be very difficult to have all attend any one day. And 



SeC. 5.] POWERS OF EACH HOUSE SEPARATELY. 87 

yet it would not be fair for a few members to do busi- 
ness in the absence of the rest, whose votes would per- 
haps have decided the business in a different way. Some 
number must be fixed as a quorum. 

The Constitution fixes that number at a majority. 

But when the House of Eepresentatives is called on to 
choose a President, a quorum for that purpose consists of a 
member or members from two-thirds of the states. (Am. 
XII.) 

IV. Powers of a less number. — 

But it often happens that a majority are not present 
to do business; and it has sometimes happened that a 
number of members absent themselves purposely to pre- 
vent business being done. 

Two powers are therefore given to a less number 
than a quorum: 

1. They may adjourn till the next day, and so on 
day after day, till a quorum is present. 

2. Or they may compel the attendance of absent 
members, in accordance with the rules already fixed by 
the House. 

Under the rules of the House of Eepresentatives, no mem- 
ber has a right to stay away from a session of the House 
unless he is excused or is sick. Absentees who are not ex- 
cused or sick can be arrested by special messenger and 
brought into the House. By the rules, fifteen members, in- 
cluding- the Speaker, can compel the attendance of absent 
members. 

If a member is absent on an important vote, his party will 
lose his vote. In order to obviate this evil, there is an un- 
derstanding- among the members of both parties, that if a 



88 CIVIL GOVERNMENT. [Art. I. 

member must be absent, he can agree with some member of 
the other party to pair with him. The member who is ab- 
sent cannot vote, and the member who is paired with him 
is allowed by the courtesy of the House not to vote. The re- 
sult is the same as if both were present and voted on opposite 
sides. 



Clause 2. — Each House has Power to Make its own Rules. 

Each house may determine the rules of its proceedings, punish its 
members for disorderly behavior, and, with the concurrence of 
two-thirds, expel a member. 

I. Rules of each house. — 

The rules adopted are the general code of parliamen- 
tary practice, with some special changes and additions 
to suit the circumstances of each house. The rules of 
parliamentary practice, as they are called, grew up in 
the growth of the English Parliament, and have now 
been adopted with slight changes by all deliberative 
bodies where the English language is spoken. Under 
this section, either the Senate or House of Representa- 
tives can alter any of these rules or make new ones for 
itself whenever it chooses. And the rules of the two 
houses need not be the same. Each house makes its 
own rules. Of course the rules must be subject to the 
Constitution. Thus, a rule making a greater or less 
number than a majority a quorum would be unconstitu- 
tional. 

II. Power to punish its own members. — 

Rules would be of no use unless there were some 
power to enforce them and to punish for disobedience. 



Sec. 5.] POWERS OF EACH HOUSE SEPARATELY. 80 

Therefore, each house has the right, not only to mako 
the rules for its own proceedings, but to punish those 
who violate those rules. The offenses which may be 
punished are not exactly denned, nor are the kind of 
punishments; but the punishments for members are- 
usually reprimand or fine, and in extreme cases expul- 
sion. For expulsion, a two-thirds vote is needed. A 
large discretion is thus given to either house, which, 
might be abused, but is not likely to be. 

The power over members is not limited to offenses 
committed by members in their capacity as members, or 
during the session of Congress, but a member may be 
punished for any disorderly or unparliamentary action,, 
or for any conduct which renders him unfit to be a 
member. 

As Senators or Representatives cannot be impeached 
or removed in any other way or by any other power,, 
this power of expulsion is the only safeguard against 
unworthy members. » 

III. Power to punish persons not members. — 

Besides this power over its own members, each house- 
has the power to punish other persons for a breach of 
its privileges, for disorderly conduct, or for contempt. 
"No such power is expressly given by the Constitution,, 
but it is a principle of the common law, that the power 
to preserve order and to punish for contempt belongs to 
courts of law and to legislative bodies. The power of 
either house to punish for contempt or disorderly be- 
havior is limited to reprimand, fine, or imprisonment,. 



00 CIVIL GOVERNMENT. [Art. I. 

and to the session of Congress at which the offense is 
committed. 

IV. Some disputed questions. — 1. Can a member be pun- 
ished for an offense committed before lie became a member? Prob- 
ably not; the decisions have thus far been to that effect. And 
the House of Eepresentatives has gone so far as to decide that 
it could not even punish a member for corrupt conduct in a 
previous term. But these decisions do not legally bind future 
houses, and a flagrant case may arise sometime which will 
lead to an opposite decision. 

2. Can either house imprison a person not a member? Yes; but 
only during the session. When the session of Congress closes, 
the prisoner must be released. The imprisonment in such 
cases is usually in one of the committee rooms, under guard 
of the sergeant-at-arms or one of his subordinates. 

Clause 3.— Publicity. 

Each house shall keep a journal of its proceedings, and from time 
to time publish the same, excepting such parts as may in their 
judgment require secrecy, and the yeas and nays of the members 
of either house on any question shall, at the desire of one-fifth of 
those present, be entered on the journal. 

I. The value of publicity. — 

In a popular government like ours, the people ought 
to be able to know what their representatives are doing. 
This is a good to the legislators, and a justice to the peo- 
ple. The members of Congress need publicity, to check 
them in corrupt or unwise conduct, by the condemnation 
of the people. They also need it to secure public ap- 
plause for any ability they may show in advocating or 
carrying through wise measures. The people need pub- 
licity in the proceedings of Congress, so that they may 
know whether their representatives are worthy of re- 



Sec. 5.] POWERS OF EACH HOUSE SEPARATELY. 91 

election, and they also need to read the discussions and 
votes in Congress for their own education in political 
questions. 

II. How publicity is secured. — 

Publicity of the proceedings in Congress is secured by 
the Constitution in two ways: 

1. By keeping and publishing a journal of their pro- 
ceedings. 

2. By recording the vote of each member, when one- 
fifth of those present call for it. 

Besides these ways, publicity is effectually secured in three 
other ways: 

1. Spectators are admitted to the proceedings. Galleries 
are built expressly for the public, and certain distinguished 
persons are admitted to the floor of each house. 

2. The reporters of newspapers are admitted, and are fur- 
nished every facility for reporting the proceedings in full. 
By the aid of the telegraph, the proceedings of each day in 
Congress are now printed the next morning in all the leading 
newspapers, which in the course of that day reach almost 
every village in the land. These reports are often fuller and 
more correct than the official report. Hundreds of thousands 
of voters read them with the closest interest. 

3. Members are in the habit of having their speeches 
printed and sent to everybody who is likely to take an inter- 
est in them. 

III. Publishing the journal. — 

The journal of the proceedings of each house is kept 
by clerks, and is printed and laid on the desk of each of- 
ficer and member of each house the next morning. It 
is published in volumes in the Congressional Globe. 



92 CIVIL GOVERNMENT. [Art. I. 

Those parts which require secrecy are not published. The 
House of Representatives usually has no secret sessions, and 
the Senate only when it does business which it shares with 
the President, hence called executive business. Such sessions 
are called executive sessions. 

Executive business is of two kinds: the confirmation or re- 
jection of appointments to office, and the confirmation or re- 
jection of treaties. It is obvious that secrecy is proper in 
both of these cases. When the Senate goes into executive 
session, all persons are shut out except the Vice-President,, 
the Senators, and a few trusty officers, who are sworn to se- 
crecy. Yet the reporters for the press generally manage to 
find out and publish what was done in executive sessions, in 
spite of all these precautions. 

IV. Methods of voting in Congress. — There are three 
ways of voting in Congress. 

1. By acclamation. The presiding officer puts the question,, 
and all who are in favor of it say "aye;" then, after a pause,, 
all who are opposed say "no." If they are nearly all one way 
or the other, it is easy to decide, and time is saved. 

2. If the vote by acclamation is nearly balanced, the pre- 
siding officer either says he cannot decide, or some one calls 
for a division of the house, when a rising vote is taken, and 
the members are counted. If this is not satisfactory, a call 
may be made for tellers. The presiding officer then appoints 
two tellers, who take their position in front of the speaker, 
and the members, first those in the affirmative, then those in 
the negative, pass between the tellers and are counted by 
them. 

This is the usual method of voting in the British Parlia- 
ment, but is not often used in Congress. 

3. But in important questions, where a record of each mem- 
ber's vote is wished, the ayes and noes (or yeas and nays) are- 
called for. The method of calling for them is thus: Some 
member addresses the chair, and says, "I call for the ayes 
and noes." The chair then says, "Is the call sustained?" All 
those rise who are in favor of the call, and if these are one- 



SeC. 5.] POWERS OF EACH HOUSE SEPARATELY. 93 

fifth of all present the call is sustained; the roll is then 
called, and each member's vote is recorded. 

V. The object of calling the yeas and nays. — The object 
of calling- the yeas and nays is to make an official record of 
each member's vote, so that his constituents and the country 
generally may know how he voted. When such record is 
made, members are apt to be more careful how they vote. 
At least one-fifth of those present must call for the yeas 
and nays, because to call the roll of members takes a long- 
time, and if one or two members could compel such a call, 
business would be constantly delayed. But on the other 
hand, if it required a majority vote to record the yeas and 
nays, a majority could easily refuse to record their votes, 
and thus rush through all sorts of measures without any 
•check. As it is, one-fifth of the members can always compel 
a call of the yeas and nays, and thus make each member give 
his vote in such a way that the responsibility for it can be 
proved upon him. 

As it is, this power of calling for the yeas and nays is often 
used by the minority to stave off a measure which they can- 
not prevent by a direct vote. Thus, when a bill is before the 
house whose passage the minority are anxious to hinder as 
long* as they can, they will make what are called "dilatory 
motions;" that is, they will move to adjourn, to lay the bill 
•on the table, to refer it to one of the standing* committees, 
to refer it to a special committee, or to amend it in various 
ways; and on all these motions will call for the yeas and nays, 
besides having- the right to make speeches on most of them. 
33y these expedients the passage of any bill may be delayed 
for several days. 

Dilatory motions are cut off by the "previous question," 
-which stops debates and dilatory motions and compels the 
main question to be put at once. This is often used in the 
House of Eepresentatives. The Senate rules do not provide 
for the previous question, and the custom there is for each 
Senator who wishes to do so to speak at length on every 
■question. 



94 CIVIL GOVERNMENT. [Art. I. 

Clause 4. — Adjournment. 

Neither house, during the session of Congress, shall, without the con- 
sent of the other, adjourn for more than three days, nor to any- 
other place than that in which the two houses shall be sitting. 

Adjournment. — 

If either house could adjourn to any time or place 
without the consent of the other, it might cause a great 
deal of trouble and inconvenience. 

The two houses must be in session at the same time 
and place. Only one exception is allowed by the Con- 
stitution. 

Either house may adjourn for three days or less with- 
out asking the consent of the other. This is to allow 
for Sundays and holidays, and other special occasions. 

In case the two houses cannot agree upon the time of 
adjournment, the President has the power to adjourn 
them to any time he may think proper. (II, 3.) This 
power has never been exercised. 



SECTION VI.— POWERS OP MEMBERS. 
Clause 1. — Privileges of Members. 

The Senators and Representatives shall receive a compensation for 
their services, to be ascertained by law, and paid out of the Treas- 
ury of the United States. They shall in all cases except treason, 
felony and breach of the peace, be privileged from arrest during 
their attendance at the session of their respective houses, and in 
going to and returning from the same; and for any speech or de- 
bate in either house, they shall not be questioned in any other 
place. 

I. Salary paid by the United States. — 

In England members of Parliament are not paid; the 
tendency of which practice is to favor the aristocracy, 



Sec. 6.] POWERS OF MEMBERS. 95 

who can afford to go to Parliament without salary. Un- 
der the Confederation, the delegates were paid by the 
states that sent them, as they were merely delegates, sub- 
ject to recall at any time. Members of Congress are 
paid for their services, so that poor men can afford to go 
to Congress; and they are paid by the United States, so 
that their pay shall be equal, and that they may be in- 
dependent of dictation by their state legislatures. Be- 
sides, they act for the whole United States, and not for 
their own state only, and therefore it is fair that they 
be paid by the United States. 

The pay of Senators and Representatives was originally six 
dollars a day for each day's service, and six dollars for every 
twenty miles of travel to and from the seat of government. 
It is now fixed at $5,000 a year, and twenty cents a mile for 
traveling expenses, i. e., ten cents each way. The Speaker 
of the House receives $8,000 a year, and the President pro 
tempore of the Senate the same when he acts as President of 
the Senate. 

Congress fixes the salaries of its own members. Several 
times a Congress has raised the salaries of its members, not 
only for the rest of its term, but has made the increase apply 
back to the beginning of its term. 

There is nothing in the Constitution to prevent this, al- 
though it is evidently unjust. An amendment was proposed 
in 1789 which, if it had been adopted, would have prevented 
these "back-salary grabs." 

Members of both houses now have each a clerk, paid for 
by the government, and some other perquisites. 

The expenses of living in good style in Washington are 
great. Wealthy Congressmen have paid their whole salaries 
for house rent alone, and there are many calls upon Con- 
gressmen for money, so that few save very much out of their 
salaries. 



96 CIVIL GOVERNMENT. [Art. I. 

II. Privilege from arrest. — 

The privilege of members of Congress from arrest is 
common to all legislative bodies, here and in Europe, 
and for the same reason, that their constituents may not 
be defrauded of their voices and votes for any frivolous 
reason. This freedom from arrest does not cover: 

1. Arrest on the charge of treason. 

2. Arrest on the charge of a felony — that is, any 
crime which is punishable by death or imprisonment in 
a penitentiary. 

3. Arrest for breach of the peace — that is, any act 
that disturbs public order, such as assault and battery. 

But it does cover : 

1. Arrest for any misdemeanor except breach of the 
peace. 

2. Service of any civil process, such as a suit for debt, 
a subpoena as a witness, or a summons to serve on a 
jury. 

This privilege from arrest covers the time of the ses- 
sion, and the time necesary to go to Washington before 
the session and to return after it. It is not necessary for 
-a member to be sworn in before enjoying this privilege, 
otherwise he might be arrested when going to the first 
session in order to be sworn in, and thus be prevented 
from taking his seat at the proper time. 

III. Freedom of debate. — 

The privilege of freedom of speech is given to mem- 
bers of Congress. 

This freedom differs from the freedom of speech out- 



JSeC. 6.] POWERS OF MEMBERS. 97 

side of Congress, granted to all citizens by Amendment 
II, in giving freedom from libel suits, as well as all 
other freedom of speech. 

Members are privileged from arrest for words spoken 
in debate. For indecent or libelous words spoken in 
•debate they may be punished by their own house, but 
not by any court of law. As the debates in Congress 
are always printed, this privilege extends to their official 
publication. But it does not extend to their publication 
in any other way. A member is free to speak a libel 
on the floor of the house to which he belongs, if the 
house allows it, and is not liable for its official publica- 
tion. But if he or any one else publishes such a libel in 
any other form, it is not protected by this privilege. 

Clause 2. — Restrictions on Members. 

IXo Senator or Representative shall, during the time for which he 
"was elected, be appointed to any civil office under the authority 
of the United States, which shall have been created, or the emol- 
uments whereof shaU have been increased during such time; and 
no person holding any office under the United States shall be a 
member of either house during his continuance in office. 

I. Restrictions on members. — 

The Constitution places certain restrictions on Sen- 
ators and Representatives. 

1. No Senator or Representative can, during the time 
for which he is elected, be appointed to a civil office 
which was created or the salary or fees of which have 
been increased during that time. This is to prevent a 
Congressman having a place made for him and resign- 
ing to take it. 

u. S. Con.— 7. 



98 CIVIL GOVERNMENT. [Art. I. 

2. ~No Senator or Representative can at the same 
time hold any office under the United States. This is 
to prevent a double salary and divided service. 

II. Shall Cabinet officers sit in Congress? — In England 
the principal officers of government must always be members 
of Parliament. They receive no salaries as members of Par- 
liament, but they do receive very liberal salaries as officers, 
so that a person who can afford to do so can make a fortune 
in politics by being elected to Parliament and working his 
way up to office by that means. The essential feature 
of English parliamentary government is that the leading 
members of the majority party in Parliament also hold the 
chief executive offices. The sovereign is thus effectually pre- 
vented from actually governing, because he cannot appoint 
his own officers. The executive and the legislative depart- 
ments are thus not separated, as with us, but the legislative 
controls the executive. With us, a separation between the 
executive and legislative is required by this provision. The 
executive officers of the United States are appointed by the 
President, or by some other officer himself appointed by the 
President. They have a great deal of political influence. If 
they could be elected to Congress it would be possible for 
the President to control legislation through them, in the 
same way as George III at the time of the Eevolution was 
actually controlling the action of Parliament through a body 
of salaried officers appointed by him, who were also members 
of Parliament, and by giving offices from time to time as the 
price of votes. 

III. Duties of members. — In addtion to committee work 
and attendance on the session of his own house, each Senator 
and Kepresentative is obliged to cordially receive constituents 
who come to Washington, to keep up a large correspondence 
with his constituents at home, and to do a great many er- 
rands for them. Constituents wish help on pensions and 
claims of various kinds, wish public documents and seeds, 
and they ask for all sorts of public information. The most 



SeC. 7.] , PROCESS OF MAKING LAWS. 99 

perplexing work of a Senator or Kepresentative is assisting 
applicants for office, and determining which one he will help 
when there are several applicants for the same office. The 
President and the heads of departments cannot personally 
know all the applicants for office, and they are compelled to 
depend very much upon the recommendation of Senators and 
Representatives of their own party. 



SECTION VII.— THE PROCESS OF MAKING LAWS. 

Clause 1. — Where Bills May Originate. 

All bills for raising: revenue shall originate in the House of Repre- 
sentatives; but the Senate may propose or concur with amend- 
ments as on other bills. 

I. Bills which the House of Representatives 

only can originate. — 

Most bills may originate in either the Senate or the 
House of Kepresentatives ; but revenue bills must origi- 
nate in the House of Representatives. 

This provision is taken from the unwritten constitution of 
England. There the House of Commons alone can originate 
money bills, and the House of Lords can only accept or re- 
ject them, but cannot propose amendments to them. Here 
the House of Representatives only can originate money bills; 
but the Senate has the right to propose amendments. The 
reason for requiring bills for raising taxes to originate in the 
House of Representatives is because that body represents the 
people directly, and it is the people who are to pay the taxes. 

II. Bills which either house may originate. — 

The Senate may, however, originate bills which raise 
revenue indirectly, so long as their main object is not to- 



100 CIVIL GOVERNMENT. . [Art. I. 

raise revenue. For instance, a law to levy a direct tax 
or a law to assess duties on certain imported goods must 
originate in the House of Representatives, but a law the 
violation of which was to be punished by fines to be paid 
into the treasury, or a law to regulate the sale of public 
lands, might originate in either house. Any bill which 
does not relate to raising revenue may originate in either 
house. 

Clause 2. — How Bills May Become Laws. 

Every bill which, shall have passed the House of Representatives 
and the Senate, shall, before it become a law, be presented to the 
President of the United States; if he approve, he shall sign it; but 
if not, he shall return it, with his objections, to that house in 
which it shall have originated, who shall enter the objections at 
large on their journal, and proceed to reconsider it. If, after such 
reconsideration, two-thirds of that house shall agree to pass the 
bill, it shall be sent, together with the objections, to the other 
house, by which it shall likewise be reconsidered, and if approved 
by two-thirds of that house, it shall become a law. But in all 
cases the votes of both houses shall be determined by yeas and 
nays, and the names of the persons voting for and against the bill 
shall be entered on the journal of each house respectively. If any 
bill shall not be returned by the President within ten days (Sun- 
days excepted) after it shaU have been presented to him, the 
same shall be a law, in like manner as if he had signed it, unless 
the Congress, by their adjournment, prevent its return, in which 
case it shall not be a law. 

I. The different ways in which a bill may be- 
come a law. — 

There are three ways in which a bill may become a 
law: 

1. It may pass both houses and be signed by the Pres- 
ident. 

2. It may pass both houses, be vetoed by the Presi- 



Sec. 7.] PROCESS OF MAKING LAWS. 101 

dent, and be passed over his veto by a two-thirds major- 
ity of each house. 

3. It may pass both houses, and the President may 
fail to sign it within ten days (when these are not at 
the close of the session). 

A bill becomes a law as soon as any one of these con- 
ditions is complied with. And it goes into operation as 
a law at once, unless it is expressly provided in the law 
that it shall go into operation at some future time. 

There are four ways in which a bill may be lost : 

1. It may not pass the Senate. 

2. It may not pass the House of Representatives. 

3. It may be vetoed by the President, and not passed 
over his veto by Congress. 

4. It may be retained by the President within ten 
days of the end of the session, without either his signa- 
ture or his veto. 

II. The President's veto. — 

The power of the President to reject a bill is generally 
called the veto power. 

The veto power of the President is derived from the veto- 
power of the English sovereign. A king- (or reigning queen) 
of England has an absolute veto, but the President has a 
limited veto. The veto of a bill by the king of England is 
final. The act cannot be reversed by Parliament. But the 
President has a limited veto. A bill vetoed by him may be- 
come a law in spite of his veto, by a two-thirds vote of each 
House of Congress. But the absolute veto of the English 
sovereign is rarely used, while the limited veto of the Presi- 
dent is frequently used. 



102 CIVIL GOVERNMENT. [Art. I. 

III. Passage of a bill over the President's veto. — When 
the President vetoes a bill, he sends it with his objections to 
the house in which the bill originated. These objections are 
to be entered on the journal of the house, so that there may 
be a permanent record of them in connection with the legis- 
lative action upon that bill. If the bill thus vetoed fails of 
a two-thirds majority in the house to which it is first sent, 
that is the end of it. But if it passes that house, then it is 
sent to the other house. If it fails of a two-thirds majority 
there, that is the end of it. But if the bill receives a two- 
thirds majority in that house also, it becomes a law in spite 
of the President's veto. The vote in each house on a vetoed 
bill must be by ayes and noes, and must be recorded in the 
journal, to make each member as responsible for his vote as 
the President is for his veto. 

IV. How a bill may become a law without the Presi- 
dent's signature or veto. — The time in which the President 
can consider a bill is limited to ten days, not counting Sun- 
days. Otherwise, the President might embarrass legislation 
by holding bills indefinitely without signing or vetoing them. 
If the President fails to sign a bill within ten days (not count- 
ing Sundays), the bill becomes a law without his signature. 

V. Pocketing a bill. — The President has a veto power 
which is practically that of an absolute veto, over those bills 
which are passed within the last ten days of the session. He 
can refuse either to sign or veto those bills, which kills them. 
This is called "pocketing" a bill. 

When the President "pockets" a bill, Congress can do noth- 
ing about it, because it is not in session. But the same bill 
may be introduced as a new bill at the next session. The 
larger part of all bills which pass Congress are passed in the 
closing days of a session; and therefore this power of the 
President is more important than it may seem at first. 



SeC. 7.] PROCESS OF MAKING LAWS. 103 

Clause 3. — Joint Resolutions. 

Every order, resolution, or vote to which the concurrence of the 
Senate and House of Representatives may be necessary (except on 
a question of adjournment), shall be presented to the President 
of the United States; and before the same shall take effect, shall 
be approved by him, or being disapproved by him, shall be re- 
passed by two-thirds of the Senate and House of Representatives, 
according to the rules and limitations prescribed in the case of a 
bill. 

I. They must be submitted to the President. — 

Those resolutions which are intended to have the ef- 
fect of laws need also the President's signature, like bills. 
The mere fact that they are called resolutions instead of 
bills does not change the method of their going into ef- 
fect. 

But when a resolution is not intended to have the force of 
law, but only to express the opinion of one or both houses, it 
does not need the President's signature. This is obvious in 
the case of a resolution of either house alone. 

When both houses tog-ether pass a resolution not intended 
to have the force of law, such a resolution is called a eon- 
current resolution, not a joint resolution, and it is not signed 
by the President. 

II. Congressional action which need not be submitted to 
the President. — Any action of one house alone, or both 
houses together, which does not have the effect of law, does 
not need to be submitted to the President. The following 
proceedings do not need the President's signature, or a legal 
substitute for it: 

I. Any action of one house separately; such as — 

1. Anything affecting the organization of either house. 
These concern only that house, and are therefore determined 
by it alone. 

(a) Thus each house is judge of the elections, qualifications 
and returns of its own members. (Art. I, Sec. 5, Clause 1.) 



104 CIVIL GOVERNMENT. [Art. I. 

No other power can interfere with this right. Neither the 
President nor the other house nor the courts have anything 
to do with this question. Each house can pass any orders, 
resolutions or votes upon any question as to who are law- 
fully entitled to sit as its members. The decision is final, 
whether right or wrong, and it can only be reversed by some 
other action of the same house. 

(&) Each house can elect its own officers, except that the 
Vice-President of the United States is President of the Sen- 
ate. (I, 3, 4.) This right belongs to each house by itself, and 
no other power can lawfully interfere with it. 

2. Any resolution expressing the opinion of one house. Any 
society, political convention or public meeting may express 
its opinion by resolutions. And either house of Congress has 
the same right to express its opinions by resolutions. Such 
a resolution has no legal force, and does not require the as- 
sent of the other house or of the President. 

3. An impeachment by the House, or the trial of an im- 
peachment by the Senate, or any orders or resolutions relat- 
ing to them, do not need the President's signature. In this 
case the two houses are not acting as legislative bodies, but 
as judicial bodies, the House of Eepresentatives as a public 
prosecutor, and the Senate as a court. As their actions 
in this case are not in the nature of laws, they do not need 
the President's signature. 

II. Certain resolutions of both houses, which do not have 
the effect of laws, do not need the President's signature. 

1. A resolution proposing an amendment to the Constitu- 
tion does not need the President's signature. Such a reso- 
lution does not amend the Constitution, but only proposes 
an amendment. It is the action of the states, through leg- 
islatures or conventions, that actually amends the Constitution. 

2. A resolution which is in the nature of an agreement be- 
tween the two houses to do something, does not heed the 
President's signature. Such a concurrent resolution has no 
binding force, except the honor of the two houses. Each 
house still can do as it pleases. It is bound by no law. As 



Appendix.] state legislatures. 105- 

such a resolution is not a law, it does not need the President's 
signature. 

3. In brief, it may be said that any action of Congress 
which is in the nature of a law must be submitted to the 
President for his approval, and any action which is not in 
the nature of a law does not need to be so submitted. 



APPENDIX TO PART II. 
ORGANIZATION OF THE STATE LEGISLATURES. 

[The information called for here is to be found mostly in the state consti- 
tution of each state, and if not there, in the statutes. Any copy of the re- 
vised statutes will also contain the state constitution. Some care should be 
taken to consult the session laws passed since the revision of the statutes. 
The Legislative Manual should contain the State Constitution, and a com- 
plete list of the officers and employes under the state government.] 

I. State governments like the United States. — 

The United States Constitution was drawn mostly 
from the experience of the several state governments. 
In its turn it has had a very powerful influence upon 
the later state constitutions. 

All the state legislatures consist of two houses. The 
upper house is usually called the Senate. The lower 
house is in many states called the House of Representa- 
tives. The members of both houses are elected by the 
voters. But the upper house always has fewer members 
and they are elected for a longer term. 

The earlier state legislatures were annual, but the 
tendency now is to make them biennial. This means 
that the members of the lower house are elected every 
two years, and that only one regular session is held in 
each two years. The provision is usually made that 



106 CIVIL GOVERNMENT. [Art. I. 

when the governor calls a special session, the business 
is limited to the matters specified in his call. 

The officers and committees of the two houses in the 
state legislatures are very nearly the same as in Congress. 
The Lieutenant Governor is President of the Senate, 
and a President pro tempore is elected from among the 
Senators. The Senate elects its own committees. In 
the lower house the Speaker is elected by the members 
and appoints the committees. The other officers of each 
house are nearly the same in name and duties as in Con- 
gress. 

The powers of each house, and the process of making 

laws and the privileges of members are nearly the same in 

the state legislatures as in Congress. 

II. Work for the student. — 1. What is the name of each 
House of your state legislature? 

2. What is the number of members of each House? 

3. What is the term of office of members of the upper 
House? 

4. What is the term of office of members of the lower 
House? 

5. When are the elections held? 

6. How are vacancies made, and how filled? 

7. What are the qualifications required for voters for mem- 
bers of the lower House? 

8. What additional qualifications, if any, are required for 
voters for members of the upper House? 

9. What qualifications are required for members of each 
House? 

10. How are the members elected? By single districts? 
On a general ticket for the county? Or, by minority repre- 
sentation in large districts? 



Appendix.] state legislatures. 107 

11. How is the legislative apportionment made, and how 
often? 

12. How often does the legislature meet? Annually? Or 
biennially? 

13. On what day does the legislature meet and where? 

14. What are the officers of the upper House, and how 
-chosen? 

15. What are the officers of the lower House and how 
chosen? 

16. Are the members of your legislature paid a fixed salary 
or a per diem, and if the latter, is the number of days limited? 

17. Is each House judg'e of the elections and qualifications 
of its own members? 

18. What constitutes a quorum? 

19. What powers has each House to discipline members and 
others? 

20. What methods of giving publicity to the proceedings 
•of the legislature are required by the constitution? 

21. What are the provisions of your state constitution about 
adjournment ? 

22. What exemptions from arrest have members? 

23. What security have members for freedom of debate? 

24. What restrictions are there upon members? 

25. In what points does the process of making laws differ 
■from that in the United States? 

HI. Direct legislation by the people. — 

Distrust of their Kepresentatives is leading up to an- 
•other step in the evolution of popular government. Di- 
rect legislation by the people had not until recently been 
thought practicable except in small communities like 
•some of the smaller Swiss cantons or a New England 
town meeting. In these cases the voters assemble and 
legislate directly, just as the voters of Athens and other 
ancient Greek democracies did. But until recently it has 



108 CIVIL GOVERNMENT. [Art. L- 

not seemed practicable in larger communities like cities,, 
counties or states, much less in the United States. 

Recently two devices have been adopted in Switzer- 
land, both in the larger cantons and in the Federal gov- 
ernment, which allow of direct legislation by the people 
by means of the ballot. These are called the Referen- 
dum and the Initiative. 

IV. The referendum. — 

This is a method of referring (hence the name) pro- 
posed laws to the people. We have already had the 
thing itself without the name in the adoption of consti- 
tutions or constitutional amendments in states by popu- 
lar vote after they have been prepared by conventions 
or by state legislatures. We also have had a similar ref- 
erence to popular vote in various matters of state and 
local legislation, such as local taxes, the issue of bonds,, 
undertaking public improvements, licensing saloons, etc. 

It is now proposed that all laws be made subject to a 
referendum, at least whenever called for by a petition 
of a small number of voters. Several states have re- 
cently taken steps in this direction, either to provide a. 
referendum for state laws or for ordinances of cities and 
other subdivisions of a state. 

V. The initiative. — 

The initiative is the name given to several proposed 
methods of giving the people an initiative in legislation. 
On the request of a small percentage of voters any pro- 
posed law on this plan may be submitted to a vote of the 



Appendix.] state legislatures. 109 

people, either of a municipality or of a state, or of the 
United States. 

VI. Forecast of the future. — 

The growing distrust of legislatures and city councils, 
as shown by the constitutional restrictions imposed upon 
them, and by the frequent charges that legislatures and 
city councils have been controlled by the influence of 
wealthy individuals or corporations, is preparing the peo- 
ple for some method of securing legislation without legis- 
latures. 

It is altogether probable that little by little some form 
of direct legislation will be secured, and that it will be 
used on questions on which there is great public interest, 
leaving all ordinary legislation to the legislative bodies 
as before. 



fart III. 



IPowers of ^legislation* 



The occasion is so important that no man ought to be silent 
or reserved. A limited monarchy is one of the best govern- 
ments in the world. Equal blessings have never yet been de- 
rived from any of the republican forms, but though a form 
the most perfect perhaps in itself be unattainable, we must 
not despair. Of remedies for the diseases of republics which 
Tiave nourished for a moment only and then vanished forever, 
one is the double branch of the legislature, the other the ac- 
cidental lucky division of this country into distinct states, 
which some seem desirous to abolish altogether. This divi- 
sion ought to be maintained, and considerable powers to be 
left with the states. This is the ground of my consolation for 
the future state of my country. In case of the consolidation 
of the states into one great republic, we may read its fate in 
the history of smaller ones. The point of representation in 
the national legislature of states of different sizes must end 
in mutual concession. I hope that each state will retain an 
equal voice at least in one branch of the national legisla- 
ture. — John Dickinson, of Delaware, in Constitutional Con- 
tention, June 3, 1787. 



Sec. 8.] POWERS OP CONGRESS. 113 

SECTION VIII.— POWERS OP CONGRESS. 

I. Powers of Congress are legislative powers. — 

Thus far we have treated of the organization of Con- 
gress. We now consider the legislation of Congress. 
Congress is the law-making power of the government, 
and any laws which the federal government is author- 
ized to make may be made by Congress. The United 
States government can only make laws through Con- 
gress; and therefore the powers of law-making given in 
this section are expressly given to Congress, and the re- 
strictions upon legislation by the United States are ex- 
pressly imposed upon Congress as the legislative depart- 
ment of the government. 

The powers of Congress are all legislative powers. 
Congress has all the legislative power of the federal gov- 
ernment, except as limited by the President's veto, and 
has no powers except legislative powers. 

But as the United States government is a government 
of limited powers, the powers of Congress are limited. 
Many powers are reserved to the states, and many others 
are not given either to the state legislatures or to Con- 
gress, but are forbidden to both. This fact of the divi- 
sion of power makes the subject of the powers of Con- 
gress somewhat difficult and complex. 

The Senate, acting alone, has certain executive and 
judicial powers, and the House of Eepresentatives has 
the power of impeachment, which is not a legislative 

U. S. CON.-8. 



114: CIVIL GOVERNMENT. [Art. II 

power. But Congress, as a whole, has no powers ex- 
cept for legislation. 

II. Powers of Congress cannot all be enumer- 
ated. — 

The powers of Congress given in the Constitution un- 
der that head (Article I, section 8) are not all that are 
given by the Constitution. Other powers are given in 
other parts of the Constitution. And besides these,, 
many powers have been assumed from time to time by 
Congress, as implied powers of legislation. Some addi- 
tional powers have been given by the amendments. And 
the great growth of population and territory of the 
United States, and the changed conditions of modern 
society under the remarkable mechanical inventions of 
this century, have all compelled Congress to make laws 
in many directions which the founders of the republic 
could not have foreseen. 

Clause 1. — Taxation. 

The Congress sliaU have power to lay and collect taxes, duties, im- 
posts and excises, to pay the debts and provide for the common 
defense and general welfare of the United States; but aU duties, 
imposts and excises shall be uniform throughout the United States- 

I. Power of taxation inherent in government. — 

Taxation of some kind is necessary to all government. 
The labor of government, like all other labor, is ex- 
pensive, and sometimes is very expensive. In war, es- 
pecially, the expenses of government become enormous. 

All governments exercise the power of taxation as a 
necessary part of their sovereignty. And if this Consti- 



Sec. 8.] POWERS OF CONGRESS. 115 

1 tution had not expressly given this power, it still wonld 
have been implied in the fact of a government. 

Under the Articles of Confederation the real sovereignty 
was in the several states, and therefore the power of taxa- 
tion was left to each state separately. The United States 
was not a nation, but a confederation of states. Congress 
under the Confederation was not the legislative department 
of a national government, but an assembly of delegates from 
allied governments, to consult together for the common good. 
They could not tax, but they could ask the states to tax, 
and the states could tax or not, as they pleased. 

But this Constitution made us a nation, with a national 
government. For that government the power of taxation is 
necessary, and is given in this clause. 

II. The power of taxation resides in the repre- 

sentatives of the people. — 

In despotic or aristocratic governments the power of 
taxation is not in the hands of those who pay taxes. But 
in republics or limited monarchies the people, or their 
representatives, have the power of taxation. When 
those who pay the taxes themselves levy them, taxes are 
more justly collected and more wisely used. There is 
no power of the government which the people watch 
more closely than the power of raising and expending 
the public funds. 

III. The states may also levy taxes.— 

The fact that the United States exercises the right of 
taxation does not preclude the states from also levying 
taxes, nor does it forbid them authorizing cities, coun- 
ties, towns, villages and school districts from levying 
taxes for their own purposes. 



116 CIVIL GOVERNMENT. [Art. I. 

IV. Methods of taxation. — 

The following analysis gives all the methods of tax- 
ation named in the Constitution: 

( Direct J Property tax. 

m . ™« \ I Poll tax. 

TAXES 1 t 

) ( Duties. 

{ Indirect j Imposts. 

( Excises. 

Taxes are direct or indirect. Direct taxes are those 
which are paid directly by the taxpayer to the govern- 
ment; indirect taxes are those which are paid directly 
by the merchant or manufacturer on his goods, but 
which are paid indirectly by those who buy those goods. 
Indirect taxes are easier for the government to collect, 
because people do not stop to think how much goes to 
the government of what they pay for goods. 

For this reason the United States government has 
used indirect taxation almost entirely. 

V. Direct taxes. — 

The Constitution provides that direct taxes shall be 
laid upon the states according to their representative 
population. (See I, 2, 3, and I, 9, 4.) This was one of 
the compromises between the northern and southern 
states. The representative population is now, since slav- 
ery has been abolished, the same as the actual population 
of the states excluding uncivilized Indians. Yery few 
direct taxes have been collected by the federal govern- 
ment — but the states raise most of their taxes by direct 
taxation. 



Sec. 8.] POWERS OF CONGRESS. 117 

Direct taxes may be upon property or upon persons. Di- 
rect taxes upon property are levied by taking- a certain per 
cent, of the assessed valuation of the property taxed. An in- 
come tax is a direct tax; but when a direct property tax 
or income tax is levied by the United States, the per cent, 
will vary in the ratio of the population to the wealth of the 
several states. The amount to be raised is apportioned 
among the states according to their population, but within 
each state it will be apportioned according to property, or 
incomes, as the case may be. The effect of this is to tax the 
property of the newer and poorer states more than that of 
the older and richer ones. If the government raised many 
direct taxes, this would be an injustice to be redressed. 

A direct tax upon persons is called a poll tax or capitation 
tax. In that case, each person liable to the tax is called on 
to pay an equal amount. 

VI. Duties.— 

A duty is a tax on the importation or exportation of 
goods. Export duties are probably forbidden by the 
Constitution. (I, 9, 5.) Duties on imports are (a) spe- 
cific duties or (&) ad valorem duties. A specific duty is 
one upon tbe weight or measure of goods; an ad valorem 
duty is one upon their value. 

The rate of duties is called a tariff. A prohibitory tariff is 
one which puts the duties on one or more articles so high 
that it does not pay to import them. A protective tariff is 
one high enough to make it profitable to manufacture or 
raise in this country articles thus protected. A revenue tariff 
is one high enough and yet not too high to yield a good rev- 
enue to the government. Free trade exists where there is no 
tariff. 

The tariff question has been one of the great political ques- 
tions on which parties have divided; and it is likely to be a 
prominent political issue for many years to come. No party 



118 CIVIL GOVERNMENT. [Art. I. 

wishes free trade, and none wishes a prohibitory tariff. The 
contest is between a high protective tariff and a revenue 
tariff. On this question people generally divide according to 
their real or supposed interests. 

The collection of duties is in charge of the Bureau of Cus- 
toms, which is a part of the Treasury Department. Duties 
are collected at the custom houses located at the various ports 
of entry, by officers called custom house officers. 

VII. Internal revenues. — 

The word imposts is used vaguely in the Constitution 
for any kind of indirect tax, and is intended to cover any 
indirect tax that anyone could claim is not covered by 
the words duties and excises. 

Excises are taxes levied on persons who manufacture, 
or articles manufactured, in this country. The chief 
sources of revenue now from excises are the tax on 
liquors and tobacco and the licenses required for carry- 
ing on certain kinds of business. 

All these kinds of indirect taxes are called now inter- 
nal revenue. Their collection is in the charge of the 
Bureau of Internal Revenue, which is a part of the 
Treasury Department. 

VIII. Uniformity of taxation. — 

Indirect taxes must be the same throughout the coun- 
try. It is plain that this is the only fair way of taxa- 
tion. Direct taxes, as we have seen, are not uniform 
throughout the country. But the indirect taxes, from 
which the United States gets most of its revenue, are 
uniform. The same duties are charged at one port of 
entry as at another, and the same excises are charged 



SeC. 8.] POWERS OF CONGRESS. 119 

in one state as another. One of the principal things 

which led to the adoption of the Constitntion was that 

each state levied duties to suit itself. The provision for 

uniform duties, and that for free trade within the United 

States, have been a wonderful help to our commercial 

prosperity. 

IX. The objects of taxation. — 

The Constitution limits the power of Congress to tax 
the people to these three objects: (a) to pay the debts 
of the United States, (b) to provide for the common de- 
fense, and (c) to provide for the general welfare. Con- 
gress has no right to tax the people except for these 
three objects, and only enough to accomplish these ob- 
jects. The general welfare is a vague expression, which 
allows a wide margin for the discretion of Congress as 
to what things are needed for the general welfare. But 
the public money cannot lawfully be squandered as it is 
in monarchies for the luxury and pride of a king and his 
court. It cannot be expended for the sole benefit of one 
state to the exclusion of the rest. It cannot be used for 
anything that obviously does not provide for the com- 
mon defense or for the general welfare. 

Clause 2. — The Power to Borrow. 

To borrow money on the credit of the United States. 

I. The public debt.— 

The Constitution expressly gives Congress the power 
to borrow. ]STo other department of the government 
can borrow money except as authorized by law so to do. 



120 CIVIL GOVERNMENT. [Art. L 

In time of peace, the regular revenues ought to pay 

all expenses of the government. But no taxation which 

the people could afford to pay would be enough to carry 

on a great war without borrowing money. During the 

civil war the expenses of the government were over two 

million dollars a day. A large part of this necessarily 

had to be borrowed. 

II. Classification of the public debt. — The debt of the 
United States is in three forms: (a) bonds; (&) treasury- 
notes; (c) floating- debt. 

The greater part of the debt is in bonds. Of these there 
are two kinds, registered bonds and coupon bonds. The regis- 
tered bonds are called so because a register of each bond is 
kept in the United States treasury, with the name and resi- 
dence of the holder of the bond. It is thus safe against 
thieves, because no one except the person who owns it can 
collect it or the interest on it from the government. If the 
holder of such a bond wishes to sell it, he must give notice 
to the proper officers at Washington, and have the bond 
transferred on the books to the person to whom he sells it. 

The coupon bonds are not thus registered at Washington,, 
and thus are as liable to be stolen as any other property. 
They are named from the coupons or little slips of paper at- 
tached to them, each of which represents the interest on 
that bond for six months. As these become due, they may 
be cut off and sold at any broker's office or bank. The gov- 
ernment will pay these bonds or coupons, when they are due> 
to any person who presents them. 

Treasury notes, commonly called "greenbacks," are prom- 
ises to pay money. These circulated from 1862 to 1879 with- 
out being redeemed by the government, and consequently at 
a discount. As they are now redeemed on demand in gold 
and silver, they are equal in value to money. 

The floating debt consists of salaries due, interest accruing, 
bills of contractors not yet paid, and the like. This debt is 



SeC. 8.] POWERS OF CONGRESS. 121 

never very large, and is kept paid up as promptly as possible. 
A large part of the debt incurred in the civil war has been 
paid up, and that much faster than the public debt of other 
nations. Because of this, the credit of the United States is as 
good as that of any nation in the world, and we are able to 
borrow money at low rates of interest. By watching the 
newspapers early in January and July each year, the semi- 
annual statement of the debt can be found for that date. 

Clause 3. — The Power Over Commerce. 

To regulate commerce with foreign nations, and among the several 
states, and with the Indian tribes. 

I. Previous history. — Before the Eevolution, Great Britain 
regulated the commerce of the colonies with each other, with 
the home country, and with the rest of the world. During 
the war and until this Constitution was adopted, each state 
regulated its own commerce in its own way. Each state 
tried to favor its own commerce at the expense of the rest, 
and the result was that the commerce of all was hampered, 
and local jealousies were greatly increased. If this power of 
regulating commerce had not been given to the general gov- 
ernment, there can be little doubt that these commercial 
rivalries would have broken up the Union eventually. It was 
wise, therefore, to give the power of regulating commerce 
to Congress. 

II. State powers of regulating commerce. — The states 
have no power over the subject of commerce except — 

1. Commerce within the state; or 

2. Such duties on commerce as Congress may allow (I, 10, 
2 and 3), and these must be uniform in all states (I, 9, 
6); or 

3. By inspection laws. 

The states have no power over commerce within their boun- 
daries, except that which is wholly within their boundaries. 
For instance, commerce on the Erie canal is wholly within 



122 CIVIL GOVERNMENT. [Art. I. 

the state of New York, and the New York legislature, and 
.not Congress is the proper body to deal with it. But the 
Hudson river is partly in New York and partly in New Jersey, 
and the two bodies have each jurisdiction on that river. Com- 
merce between New York and Albany on that river is in the 
jurisdiction of the state of New York. But commerce be- 
tween New York and Jersey City is under the jurisdiction of 
the United States. 

Inspection laws are intended to prevent frauds in the sale 
of goods. Inspectors are appointed in many states, who in- 
spect goods offered for sale, and see that they are of the 
proper weight or measure and of the right quality. These 
inspectors are generally paid by fees, which, of course, are 
really the same as duties on the goods inspected. A state 
might, under the name of inspection fees, impose heavy duties 
on goods coming from other states or countries. To prevent 
this, the Constitution (I, 10, 2) provides (a) that the net pro- 
duce of such imposts shall be paid into the United States 
treasury, and (&) that inspection laws shall always be sub- 
ject to the revision of Congress. 

III. Commerce with foreign nations. — 

Congress has power to regulate commerce with for- 
eign nations. But Congress has not power to prohibit 
commerce for any length of time. One Congress laid 
an embargo on all foreign commerce, forbidding it as a 
reprisal for the action of European powers. The meas- 
ure aroused bitter political feeling, and was repealed in 
a little over a year. It is not likely that any such em- 
bargo will ever be laid on our commerce again. Con- 
gress has the right to so regulate foreign commerce as 
to raise a revenue from it, or to favor our own commerce 
or manufactures, or to retaliate injuries or reciprocate 



Sec. 8.] POWERS OF CONGRESS. 123 

benefits derived from the commercial laws of other na- 
tions, and the right to regulate commerce has been 
used in all these ways. 

In the practice of the government, the commercial power 
has been applied to embargoes, non-intercourse, non-impor- 
tation, coasting trade, fisheries, navigation, seamen, privileges 
of American and foreign ships, quarantine, pilotage, wrecks, 
light-houses, buoys, beacons; obstructions in bays, sounds, 
rivers, and creeks; inroads to the ocean, and many other 
kindred subjects; and, doubtless, includes salvage, policies 
of insurance, bills of exchange, and all maritime contracts, 
and the designation of ports of entry and delivery. — Farrar's 
Manual of the Constitution, p. 328. 

There is one way in which foreign commerce may be 
regulated without an act of Congress. A treaty made 
by the President and confirmed by the Senate may reg- 
ulate commerce between the United States and the 
power with which the treaty is made. Such a treaty 
annuls any act of Congress in conflict with it, and can- 
not be repealed by act of Congress. Such commercial 
treaties are a part of the supreme law of the land, and 
are superior to any act of Congress. But the House 
of Representatives persistently objects to this encroach- 
ment on its rights, and has usually succeeded in being 
consulted in some way or other about any such treaty. 

IV. Commerce between the states. — 

Congress has power to regulate commerce among the 
several states. In the exercise of this power, Congress 
has wisely made all commerce within the United States 



124 CIVIL GOVERNMENT. [Art. I. 

free. A merchant can travel from state to state without 
being stopped by vexatious duties at the border of each 
state. Freight and passengers are carried past state 
boundaries without hindrance. For all the purposes of 
commerce this great territory is a unit. The only regu- 
lations that have been prescribed are such as are needed 
for the safety of ships and steamboats. 

V. Railroads. — Ealroads were not known when the Con- 
stitution was adopted, and in their earlier years railroads were 
short lines, mostly within one or at most two states. But 
the great railroad systems of the United States have now 
grown beyond the power of any one state to control, or of all 
of them, acting separately. Congress has therefore enacted 
the Inter-State Commerce Act, regulating railroad commerce 
between the states. Congress has thus assumed control of 
this subject, and is passing more and more effective laws on 
it from time to time. The law does not now apply to rail- 
roads which are wholly within one state. It is still an un- 
decided question whether Congress can regulate the traffic 
on such railroads. Probably, however, it is within the power 
of Congress to do so, from the fact that by their connections 
with other railroads they form a part of the great railroad 
systems, which are interstate. 

VI. Commerce with the Indian tribes. — 

Congress has sole control of commerce with the Indian 
tribes. These tribes are not foreign nations, nor are 
they composed of citizens. They are subject peoples,, 
and as such they are under the control of the federal 
government. Commerce, like all other relations with 
them, is under the control of the general government. 
Even if one of these tribes is located within the bound- 



Sec. 8.] POWERS OF CONGRESS. 125 

aries of a state, the state lias nothing to do with it. The 

United States alone controls all relations with it. 

This, of course, does not apply to Indians who have given 
up tribal relations and are admitted to citizenship. As fast 
as possible, the Indian tribes are now being civilized and ed- 
ucated and made citizens. The time will soon come when 
there will be no Indians politically, but only American cit- 
izens of Indian descent. When that time comes this clause 
will be obsolete. 

Clause 4. — Naturalization and Bankruptcy. 

To establish an uniform, rule of naturalization, and uniform laws on 
the subject of bankruptcies throughout the United States. 

I. Naturalization laws. — 

Naturalization is the process by which a foreigner 
becomes a citizen. The power of naturalization is one 
of the attributes of sovereignty. As long as the states 
were held to be sovereign, it was proper that they should 
have the power of naturalization, as they did under the 
Articles of Confederation. But when this Constitution 
was framed to make us one nation, this power of natural- 
ization was taken from the state legislatures and given 
to Congress. Some practical abuses had arisen from 
the states requiring different times of residence. A for- 
eigner who thought the time required in one state too 
long, had only to move to a neighboring state to be 
naturalized in a much shorter time. It was, therefore, 
provided that the rule of naturalization should be uni- 
form. 

See under Amendment XIV, for a full discussion of natural- 
ization and citizenship. 



126 CIVIL GOVERNMENT. [Art. L. 

II. Bankruptcy. — 

A bankrupt law is a law under which a person who 
cannot pay his debts may give up to his creditors volun- 
tarily, or be compelled by them to give up, all his prop- 
erty which is liable for debt, and may then be freed 
•from the rest of his debts. The objects of such a law 
are to divide the property of a bankrupt fairly among 
all his creditors as far as it goes, and to give the bank- 
rupt a chance to begin business again free from his old 
debts. 

Congress has power to pass a uniform bankruptcy 
law. It must be uniform; that is, it must apply alike- 
to all parts of the United States. As long as Congress 
does not exercise this power, the states have the right 
to pass such laws; but when the United States has a 
bankrupt law, it supersedes all state laws upon the sub- 
ject, and this law is executed by United States courts 
and officers. State laws on this subject are often called 
insolvency laws. 

Clause 5. — Coinage and Weights and Measures. 

To coin money, regulate the value thereof, and of foreign coin, and. 
fix the standard of weights and measures. 

I. The power of coinage. — 

The power to coin money is an attribute of sov- 
ereignty, and naturally belongs to the United States as 
a sovereign power. The states have no right to coin 
money. (I, 10, 1.) Much less have cities, counties or- 
villages, or private individuals or corporations. Only 
the United States can coin money, and then only by act: 



Sec. 8.] POWERS OF CONGRESS. 127' 

of Congress. ~No officer of the United States can coin. 

money except as authorized to do so by act of Congress.. 

Money is coined in the United States in the mints of Phil- 
adelphia, New Orleans, San Francisco, CarsOn City, and Den- 
ver. The three latter places have been made mints because 
they are in the gold and silver districts of California, Nevada,, 
and Colorado. 

II. Foreign coins. — Congress has regulated the value of 
foreign coins so far as the rate at which they shall be taken 
for taxes and duties. But there is now no law attempting 
to regulate the value of foreign coins in the payment of 
debts. People may take foreign coins in business dealings, 
if they choose, but they are not obliged to by law. 

III. The standard of weights and measures. — Congress 
has never exercised its power to fix the standard of weights 
and measures, but has left the subject to the state legis- 
latures. This standard, however, is, with slight exceptions, 
the same in all the states, so that we have the advantages of 
uniformity. 

Congress has adopted a standard of weights to be used in 
the mints in coining money, but has not required this to be 
used elsewhere. 

Congress has also enacted that the metric system of 
weights and measures shall be lawful but not obligatory. 
The object of this is to make people familiar with this sys- 
tem, which will probably sometime be adopted by all civilized 
nations, so as to make all weights and measures throughout 
the world the same. 

Clause 6. — Counterfeiting. 

To provide for the punishment of counterfeiting the securities and 
current coin of the United States. 

Under the power conferred by the Constitution, the 
United States punishes the counterfeiting of its coins. 



128 CIVIL GOVERNMENT. [Art. I. 

bonds, notes, stamps, and other securities. The punish- 
ment is by fine and imprisonment in various degrees. 

Clause 7. — Post Offices and Post Roads. 

To establish post offices and post roads. 

I. Value of the post office. — 

The post office is the function of the general govern- 
ment which most concerns the daily life of our citizens. 
Every time we receive or send a letter or postal card or 
newspaper we touch the machinery of the United States 
government. We thus have friendly and business in- 
tercourse with distant people, and get periodical litera- 
ture far cheaper and more certainly than we should be 
able to if the government did not manage the post office, 
or if each state separately undertook to manage its own 
post offices. 

II. Post roads. — 

Congress has authority to establish post roads. Gen- 
erally it has simply used roads already established by the 
states. But it has established some highways and rail- 
roads under the authority of this section. The principal 
highway thus established was the Cumberland road from 
the Potomac westward; and the principal railroads thus 
established are the Union Pacific and Central Pacific, 
together making one line, and the Southern Pacific and 
the Northern Pacific Railroads. These railroads were 
not built by the United States directly, but by incor- 
porated companies, which were assisted by the United 



Sec. 8.] POWERS OF CONGRESS. 129 

States with money and bonds. They were built under 
the authority and with the assistance of the United 
States as post roads and military roads. 

Clause 8. — Copyrights and Patents. 

To promote the progress of science and useful arts, by securing for 
limited times to authors and inventors the exclusive right to 
their respective writings and discoveries. 

I. Copyrights. — 

A copyright secures to an author the exclusive right 
to publish and sell his writings. 

The progress of science and literature is greatly pro- 
moted by giving this privilege to authors. Most people 
cannot afford to write merely for fame, and unless they 
can be at least paid for their time, they cannot write 
much. A copyright law, by giving them the control 
of their writings, is an encouragement to authors. 

The United States copyright law has created an American 
literature since this Constitution was adopted. A large part 
of this literature would never have been written if there had 
been no United States copyright law. 

A copyright is given for twenty-eight years, and can be re- 
newed for fourteen j^ears more. It may be sold or inherited, 
like other property. This book is copyrighted; see the next 
page after the title page. 

II. Patents. — 

A patent secures to an inventor the exclusive right to 
manufacture and sell a new invention. The liberal pat- 
ent laws of the United States have encouraged very 
greatly the progress of the useful arts. 

U. S. Con.— 9. 



130 CIVIL GOVERNMENT. [Art. I. 

The natural ingenuity of the American people has been so 
stimulated by the rewards of successful inventors, that the 
United States to-day leads the world in the manufacture of 
labor-saving machinery. At every's world's fair, American 
inventions and manufactures take a large share of the prizes 
in this line. Among the important inventions of Americans, 
are the telegraph, the steamboat, the cotton gin, the sewing 
machine, the reaper, the threshing machine, the sleeping-car, 
the telephone, the phonograph, the typewriter. 

Besides these great inventions, thousands of lesser ones, 
and thousands of improvements upon machines invented else- 
where, help to show the inventiveness of the American mind, 
and the value of our patent laws. 

A caveat is given for one year to any inventor who wishes 
to secure his invention, but who needs time to perfect it be- 
fore patenting. A patent is given only to inventions really 
new, or to improvements on old inventions. A patent is given 
for seventeen years, and may be extended for seven years 
more by the patent office. 

Patents may be sold or inherited, like other property. 
Every article which is patented must have the word "pat- 
ented," with the date of the patent, affixed to it in some way. 



Clause 9.— United States Courts. 

To constitute tribunals inferior to the Supreme Court. 

United States courts. — 

A Supreme Court of the United States is provided for 
in Article III, section 1. But Congress fixes the num- 
ber of the judges, their salaries, and their duties, except 
as provided by the Constitution. Congress also has 
power to organize inferior courts. 

The power to organize these courts implies also the 
power to determine the powers of each court, within 



Sec. 8.] TOWERS OF CONGRESS. 131 

tlie limits of the Constitution. This power also Con- 
gress has frequently exercised. 

This subject is fully treated under Article III. 

Clause 10. — International Obligations. 

To define and punish, piracies and felonies committed on the high 
seas, and offenses against the law of nations. 

I. Crimes at sea. — 

Congress has power to define and punish all crimes 
committed at sea on ships over which the United States 
has any jurisdiction. Offenses against the law of na- 
tions are also under the exclusive jurisdiction of the fed- 
eral government. 

II. Piracy. — Piracy is robbery at sea. By the general con- 
sent of Christian nations, a pirate is a common enemy and 
an outlaw. A pirate is not entitled to the protection of the 
country of which he is a citizen, but may be taken by the 
forces of any other nation as well and punished. The uni- 
versal punishment for piracy is death. 

III. Felonies on the high seas. — Crimes are either felonies 
or misdemeanors. If the penalty attached to them be death, 
or imprisonment in a state prison, they are felonies; other- 
wise they are misdemeanors. 

The high seas are those waters of the ocean outside the 
jurisdiction of any particular state. Generally this extends 
to low-water mark. This is the line that divides the jurisdic- 
tion of the United States from that of those states which bor- 
der on the ocean. But so far as it concerns other nations, 
the jurisdiction of the United States extends to three miles 
from low-water mark, including- all bays and gulf s. 

As between the different nations of the world, the high 
seas, that is the ocean beyond three miles from shore, are 
neutral ground, and free to all to traverse, but not owned by 
any nation. The jurisdiction of each nation extends (a) to 



132 CIVIL GOVERNMENT. [Art. I. 

its merchant vessels while on the high seas, bnt not in for- 
eign ports, and (&) to its ships of war everywhere, in port or 
on the high seas. And felonies committed by American cit- 
izens anywhere beyond low-water mark and outside the juris- 
diction of another nation, are punishable by United States 
law and not by state law. 

IV. Offenses against the law of nations. — The law of na- 
tions, or international law, consists of those rules which Chris- 
tian states acknowledge in their relation with each other. 

To secure the observance of these rules by American cit- 
izens, laws are necessary. Our government is responsible for 
its conduct and for the conduct of its citizens towards other 
nations or their subjects. A single person could involve us in 
difficulties and perhaps in war with some foreign nations, if 
we had no laws to secure the observance of the law of na- 
tions by our citizens. 

Clause 11. — The War Power. 

To declare war, grant letters of marque and reprisal, and make rules 
concerning captures on land and water. 

I. The power to declare war. — 

The power to make war and peace is one of the highest 
attributes of sovereignty. Even under the Articles of 
Confederation the general government had the power to 
make war and peace. The only question that could 
arise is, whether this power should be legislative or ex- 
ecutive. In this Constitution it is divided. The power 
to declare war is given to Congress, but the power to 
make treaties, which includes the power to make peace, 
is given to the President, with the consent of the Senate. 

A declaration of war is not necessary for a war. Acts 
of hostility are enough, and with Indian tribes fighting 
begins generally without any formal declaration of war. 



Sec. 8.] POWERS OF CONGRESS. 133 

II. Privateering. — 

Privateers are those private armed vessels which are 
engaged in authorized war. They are distinguished 
from a regular navy because they are fighting for the 
sake of plunder and are only controlled by their com- 
missions, while vessels of the regular navy sail under 
the orders of their own government and are commanded 
by responsible officers of the government. 

Privateers must always have a commission from their 
own government to show that they are not pirates. The 
commission is called a "letter of marque and reprisal." 

Marque means boundary, and reprisal means retaliation. A 
letter of marque and reprisal is thus a commission to a pri- 
vate vessel to go beyond the boundary of its own nation and 
seize the vessels of a certain nation in retaliation for wrongs 
done by that nation. 

To issue letters of marque and reprisal is an act of war. It 
may be done without other acts of war, as in the case of our 
hostilities against France in 1798, in which letters of marque 
and reprisal were issued, but war was not regularly entered 
upon by either side. Or it may be done as a part of a reg- 
ular war, as was the case in our War of 1812, with England. 

The tendency of international law now is to discourage, 
and if possible abolish, privateering. Several of the leading 
nations of Europe, at the treaty of Paris in 1856, agreed to 
abolish privateering, as between each other, and have since 
induced other powers to unite in that agreement. The United 
States refused to agree to abolish privateering unless the 
further step should also be taken, to forbid all seizures of 
private property at sea except contraband of war. Steps 
have been taken by several powers looking toward that result; 
and it will not be many years before the United States, in 
common with all Christian nations, will bind itself to abolish 
all privateering, and all seizures of private property at sea. 



134 CIVIL GOVERNMENT. [Art. I. 

When that time comes, this clause of the Constitution will 
become obsolete. 

III. Prizes. — Congress can make rules respecting captures 
on land or sea. This is a necessary incident of the war power. 
This power, however, is limited by the recognized rules of 
international law, and by special treaties which we have made 
with several nations. 

When ships are captured at sea, either by men-of-war or 
by privateers, they are brought into some American port and 
tried by a United States district court, sitting as a prize 
court. All questions regarding the lawfulness of the capture 
and the share of the prize to be paid to each sailor, are also 
settled by the court according to United States laws. It is 
usual to divide the proceeds of a captured ship among the 
officers and men of the men-of-war or privateers which make 
the capture. 

Captures may also be made on land, of certain kinds of 
property, according to the regular rules of war. In this case 
the proceeds of the captures go to the United States, and not 
to the soldiers making the capture. Questions in regard to 
the lawfulness of these captures will go before a United 
States court, and be decided according to the laws of the 
United States and the recognized rules of war. 

Clause 12. — The Regular Armf. 

To raise and support armies, but no appropriation of money to 
that use shall he for a longer term than two years. 

The army. — 

"War calls for armies. One of the great curses of 
Europe is the burden of enormous standing armies in 
every nation. The expense of supporting them is very 
great, and adds greatly to the taxation. Large numbers 
of men are withdrawn from active industry at the sac- 
rifice to themselves and to the nation of what they could 
otherwise earn. And the presence of a large army is a 



JSeC. 8.] POWERS OF CONGRESS. 135 

constant temptation to use it in war, and a constant temp- 
tation to ambitious generals or politicians to usurp au- 
thority. 

From this curse we are freed in this country. The 
ocean separates us from any foe we need fear. A stand- 
ing army is only needed to fight the Indian tribes, and 
to provide trained officers in case of war. We have a 
small standing army in time of peace. When war 
comes, we can easily increase our army by volunteering 
or by conscription, and on the return of peace disband 
these forces again. This has been the constant policy 
of our government. 

No appropriation can be made by Congress for more 
than two years. If Congress could make an appropria- 
tion for many years in advance, the party temporarily 
in power might fix sl large standing army on the country 
for many years. As it is, the people can at any time, 
through their representatives in Congress, reduce the 
army or abolish it altogether. In practice, Congress 
makes appropriations for the army from year to year. 
In England the appropriations for the army, as well as 
the power to govern the army by military law, are re- 
newed annually by Parliament as a protection against 
despotism. 

Clause 13.— The Navy. 

To provide and maintain a navy. 

Our navy. — 

A navy cannot be raised as easily as an army, and it 
is necessary to have a considerable navy in order to pro- 



136 CIVIL GOVERNMENT. [Art. I. 

tect our commerce in all parts of the world. A navy is 
of more use in time of peace than an army is, and of 
less use, generally, in war. It is better, therefore, to 
keep a regular navy, and not to depend upon a volunteer 
navy in case of war, as we do upon a volunteer army. 
For the same reason appropriations for a longer time are 
not forbidden. They may be necessary in building 
ships, which take time to construct. 

Clause 14. — Army and Navy Regulations. 

To make rules for the government and regulation of the land and 
naval forces. 

I. Power to make rules for army and navy. — 
The power to make war, and to organize armies and 
navies, implies also the power to rule these armies. Con- 
gress therefore has the power to make rules for the gov- 
ernment of the army and navy. These rules together 
are called military law and naval laic. These must not 
be confused with martial law. Military law and naval 
law do not govern civilians, but only soldiers and sailors. 
Martial law is the government by an army of a part of 
this or any other country held by our armies, while war 
is going on. Military law is the government of armies; 
martial law is the government by armies. 

II. The army and navy regulations. — Congress has made 
rules for the government of the army and navy, called the 
Army Regulations and the Navy Eegulations. These pre- 
scribe the duties of every officer, soldier, or sailor, and pro- 
vide punishments for every offense. For trifling offenses the 
officer in command may reprimand or put under arrest with- 



Sec. 8.] POWERS OF CONGRESS. 1ST 

out trial. But no such arrest can be longer than ten days- 
All serious offenses must be tried by court martial. A court 
martial is organized regularly, and proceeds according to reg- 
ular rules, giving the accused a fair trial, but one more sum- 
mary than in a civil court. 

Soldiers and sailors can be punished for disobeying orders^ 
as well as for what would be crimes in the case of ordinary 
citizens. And officers can also be punished for conduct un- 
becoming a gentleman. Officers have been severely pun- 
ished for such offenses as refusing to pay their debts, slander- 
ing the wife of a brother officer, etc. Punishments may ex- 
tend even so far as death. The President has power to par- 
don, or to reduce the punishment to a lighter one. Every 
officer, soldier and sailor must swear allegiance to the United 
States, and promise obedience to the rules of the army or 
navy, as the case may be. Every officer must subscribe to 
these rules, and every soldier or sailor must have them read 
to him. 

Clause 15. — The Power to Call Out the Militia. 

To provide for calling forth the militia to execute the laws of the 
Union, suppress insurrections and repel invasions. 

I. The militia. — 

The militia are citizen soldiers. The regular army is 

composed of men whose business is to be soldiers, and 

who do nothing else. The militia are citizens who are 

liable to be called away from their regular business to 

serve as soldiers for a short time. 

By act of Congress all male citizens, and those who have 
declared their intention to become citizens, between the ages 
of eighteen and forty-five, constitute the national forces, and 
are liable to perform military duty when called out by the 
President. These constitute the unorganized militia, and are 
not ready for service till called out, officered, armed, and 
drilled. The organized militia are those men who have been 



138 CIVIL GOVERNMENT. [Art. I. 

formed into companies and regiments by authority of state 
or United States laws, and are officered, armed, and drilled, 
and ready to be called out at any time, and are called the Na- 
tional Guard. 

II. Calling out the militia. — 

The militia may be called out for three things: (a) 

to execute the laws of the United States, (b) to suppress 

insurrections, and (c) to repel invasions. Each state 

may also call out its own militia for similar purposes. 

The President alone can call out the militia of the United 
States, and he may call out any number at his discretion, and 
from all the states or from some only, as may be most conven- 
ient. He calls on the governor of each state for a certain num- 
ber of militia, and it is then the duty of the governors of the 
states called on each to call out that number of militia. If 
the states do not furnish their militia as called for, the gov- 
ernment may draft men enough to make up the number. 

III. Volunteers. — 

At several times the government has accepted the 
services of volunteer companies or regiments for longer 
or shorter times. These volunteers are not a part of the 
regular army, nor are they called out as militia. All our 
great wars have been fought chiefly by the aid of volun- 
teers; and in most of our Indian wars volunteers have 
served beside the regular soldiers. 

Clause 16. — The Power to Organize the Militia. 

To provide for organizing, arming and disciplining the militia, and 
for governing such part of them as may he employed in the ser- 
vice of the United States, reserving to the states respectively the 
appointment of the officers and the authority of training the 
militia according to the discipline prescribed by Congress. 



Sec. 8.] POWERS OF CONGRESS. 139 

State and United States powers over militia. — 

The states may have their own militia, subject to 
their own laws, and many of them do have such militia. 
(See Am. II.) 

The militia of each state are organized under the laws 
of that state. But the United States may at any time 
prescribe regulations for organizing, arming and drilling 
the militia. But the states carry out these regulations. 
When the states furnish militia to the United States, 
they usually do it by regiments, with officers appointed 
by the state. These regiments are mustered into the 
United States service, and are then organized into 
brigades, divisions and army corps by the United States, 
the President appointing the officers of the brigades, 
divisions, and army corps. 

When volunteers or militia are mustered into the 
service of the United States, they are subject to the 
army regulations like the regular soldiers. 

Clause 17. — The Power of Exclusive Legislation. 

To exercise exclusive legislation in all cases whatsoever, over such 
district (not exceeding ten miles square) as rnay, by cession oi 
particular states, and the acceptance of Congress, become the 
seat of government of the United States, and to exercise like au- 
thority over all places purchased by the consent of the legisla- 
ture of the state in which the same shall be, for the erection of 
forts, magazines, arsenals, dockyards, and other needful buildings. 

I. The extent of this power.— 

Within the boundaries of the states, Congress exer- 
cises only a limited power of legislation. It can legis- 
late only on those subjects granted in the Constitution. 



140 CIVIL GOVERNMENT. [Art. I. 

Other subjects are either reserved to the states to legis- 
late on or are forbidden to both state and United States 
governments. 

But in certain places the United States can exercise 
all the authority which it can exercise in the states, and 
also all the authority which a state can exercise. These 
places are: 

1. The District of Columbia. 

2. Forts, magazines, arsenals, dockyards, and soldiers' 
homes, in which the jurisdiction has been ceded to the United 
States. 

3. Territories. (See IV, 3, 2.) 

4. On board United States men-of-war anywhere. 

5. On board United States merchant vessels when at sea. 

6. In the tide waters of the coast, so far as they are not 
under the jurisdiction of the several states. 

Over these places the United States exercises exclu- 
sive jurisdiction, and Congress has therefore the exclu- 
sive power of legislation there. 

II. The District of Columbia. — The states of Maryland 
and Virginia ceded to the United States, in 1790, a tract of 
country just ten miles square (or a hundred square miles in 
area). This was named the District of Columbia, and in 1800 
the seat of government was moved there. In 1846, that part 
of the District of Columbia lying southwest of the Potomac, 
which bad been given by Virginia, was ceded back to Vir- 
ginia. The District of Columbia now contains sixty-six 
square miles. 

The city of Washington, in the District of Columbia, is the 
capital of the United States. There was no city or village at 
which the capital was located, but the city of Washington was 
created to be the capital. Its name was given to it to per- 
petuate the memory of the greatest American, who was "first 



Sec. 8.] POWERS OF CONGRESS. 141 

in war, first in peace, and first in the hearts of his country- 
men." It is not far from his own home, at Mount Vernon, 
where he is buried. 

The District of Columbia can be taxed by Congress, but it 
is not entitled to representation in Congress, nor can its 
people vote for Presidential electors. This inequality could 
only be obviated by ceding the district back to Maryland or 
erecting it into a separate state. And this ought not to be 
dorse, because the United States needs to have absolute con- 
trol of its capital. 

The government of the United States should be supreme 
at its capital, if anywhere. If the capital of the United States 
were within any of the states, it would be subject to the 
mixed jurisdiction of the state and of the United States, and 
this would lead to endless complications and difficulties. 

III. Forts, navy yards, and arsenals. — The United States 
can also have jurisdiction over the places needed for forts, 
arsenals, navy yards, soldiers' homes, and other public build- 
ings. But the consent of the legislature of the state in which 
these buildings are situated must first be obtained. 

In giving this consent, state legislatures have generally 
reserved the right to serve all state processes, civil and crim- 
inal, in these places. The object of this is, that these places 
may not be a sanctuary for criminals, who otherwise could 
not be arrested by state authority if they escaped into these 
places. 

We must distinguish between the property of the United 
States and the jurisdiction of the United States. Forts, 
arsenals and navy yards are the property of the United States, 
and are also in its jurisdiction. In the District of Columbia 
the United States has property only in the public buildings 
and grounds; but it has jurisdiction over all the district. In 
the case of public lands unsold within a state, the United 
States has property, but has no more jurisdiction than any 
where else in the state. When the United States owns 
property, it owns it as a private individual does, except that 
it cannot be taxed by a state. 



142 CIVIL GOVERNMENT. [Art. L 

Clause 18. — Incidental Powers. 

To make all laws which shall he necessary and proper for carrying 
into execution the foregoing powers, and all other powers vested 
hy this Constitution in the government of the United States, or in 
any department or officer thereof. 

I. Incidental powers. — 

The Constitution provides that Congress may make 
all laws necessary for carrying into execution any power 
granted by the Constitution to any branch of the gov- 
ernment. 

This clause gives Congress the power not only to pass 
such laws as have been expressly named in this section, 
but any laws which may be necessary and proper for 
carrying into execution these express powers, and also 
any laws which may be necessary and proper for carry- 
ing into execution any other powers vested by the Con- 
stitution in any part of the government. 

For instance, the power in Clause 7, to establish post 
offices and post roads, is a power expressly granted to Con- 
gress. Bnt in order to carry this power into execution, it is 
necessary and proper to protect the mail. Congress has 
therefore assumed under this clause the additional power to 
pass laws punishing robbery of the mails, and requiring all 
persons who handle the mail in any way to be under oath, 
and requiring postmasters to give bonds. Congress has, also, 
under this clause created a Post Office Department, with a 
large number of post offices and postmasters. But in carry- 
ing out Article II, Sec. 2, Congress has by law vested the ap- 
pointment of these officers partly in the President with the 
consent of the Senate, and partly in the Postmaster General. 

II. Why incidental powers are granted. — The powers thus 
granted to Congress by this clause are incidental or implied 
powers, not expressly given by any part of the Constitution. 



Sec. 8.] POWERS OF CONGRESS. 143 

This clause was opposed by a large party led by Patrick 
Henry, for fear that Congress should find an excuse in it to 
override the rights of the states, and the Tenth Amendment 
was passed to quiet them. But experience has shown that 
the states still retain all the rights that they need, and that 
the federal government has not grown into a despotism be- 
cause of this clause. 

The framers of the Constitution claimed that this clause 
only asserted in words what would have been implied in any 
case. They claimed that it was only common sense that a 
government should be able to do what it was established on 
purpose to do. And they claimed that it was a sound rule 
of law, admitted by all judges, that when a power was 
granted, liberty to do all that was needed to carry it into 
effect was also granted. (See Am. X.) Experience has 
shown that the very political parties which wished to limit 
the power of Congress and the President have been, when in 
power, the very ones to do thing's not expressly granted in 
the Constitution. They were more sensible in their practice 
than in their theories. This Constitution creates a real na- 
tional government, and this government must have national 
powers. Some of these needful powers can be foreseen, and 
are named in this section and elsewhere. But it was impos- 
sible to see all the emergencies that might arise, and there- 
fore this general power is also given. 

The most remarkable act in this line was the purchase of 
Louisiana by President Jefferson contrary to his own theories 
of the power of the Constitution, but for the best interest of 
the nation. 

III. What laws Congress may pass. — 

Congress has a right to make any laws (1) which are 
expressly authorized by the Constitution; (2) or which 
are implied in the express powers given to Congress, and 
necessary to carry them out; (3) or which are necessary 
to carry out any powers vested in the United States or 



144 CIVIL GOVERNMENT. [Art. I. 

in any United States officer; (4) or which are necessary 
for the common defense or general welfare. The en- 
acting clause gives the power to the government to pro- 
vide for the common defense and to promote the general 
welfare. 

But Congress cannot make laws on subjects (1) which 
are expressly prohibited to Congress; (2) or which are 
expressly reserved to the states; (3) or which have not 
been granted to either the states or the national govern- 
ment. 

IV. Powers exercised under this clause. — The following- 
powers are some of those which have been exercised by Con- 
gress under this clause: \ 

1. The slave trade has been prohibited. The Constitution 
provides that Congress shall not prohibit it before 1808. (Art. 
I, Sec. 9.) The necessary implication is that it Can after that 
date. 

2. The writ of habeas corpus has been suspended in time of 
war. The Constitution provides that that writ shall not be 
suspended except in case of rebellion or invasion. (Art. I, 
Sec. 9.) The necessary implication is that it may be sus- 
pended in that case. 

3. Congress has erected light-houses, as a power implied 
in the right to regulate commerce. 

4. The United States has acquired territory by purchase and 
by conquest, and has governed that territory or formed states 
out of it. No express authority is given in the Constitution 
for this. When President Jefferson bought Louisiana, he is 
reported to have said that he stretched the Constitution till 
it cracked. But he forgot that Congress could do anything 
necessary for the defense and welfare of the nation. Texas 
was also annexed, and other great additions to our territory 
have been made by conquest and purchase under the same 
power. 



Sec. 8.] POWERS OF CONGRESS. 145 

5. The United States punishes offenses committed on board 
ships of war, even in port, and by persons not in the military 
or naval service. The reason is, that a ship of war is by the 
law of nations always in the jurisdiction of the nation to 
which it belongs. 

6. All persons in the United States service are exempt from 
state control while engaged in their duties as officers or em- 
ployes of the United States. Congress has not even made any 
law on this subject, but the Supreme Court has decided that 
this is a necessary incident of the general sovereignty of the 
United States. 

And the following implied powers have been exercised by 
Congress, but have been opposed as unconstitutional by pow- 
erful political parties: 

7. National banks have been created. 

8. Paper money has been issued by the government as a 
war measure. 

9. International improvements have been made, such as 
roads and canals, and making rivers navigable. 

10. An embargo was laid on all commerce once only. 

11. Most of the "reconstruction measures" at the close of 
the civil war. 

Of the great political parties, the Federalists, the Whigs 
and the Eepublicans (the present party) have been inclined 
to give the national government as much power as possible 
under this clause. And the anti-Federalists and the Eepub- 
licans (the old party) and the Democrats have been inclined 
to give it as little power as possible. 

V. Additional powers given to Congress in other parts of 
this Constitution. — In addition to the powers named in this 
section, many other powers are either expressly given to Con- 
gress, or plainly implied in other parts of the Constitution. 
A list of these powers is given below. These are all legisla- 
tive powers, and require the action of the President unless 
otherwise specified. 

As these are discussed in their proper places, a brief men- 
tion only is here given to each. 
U. S. Con.— 10. 



146 CIVIL GOVERNMENT. [Art. I. 

A. Powers relating to Congress. — 1. The power to apportion 
Representatives among the several states according to their 
population, and to fix the number of Eepresentatives, giving 
at least one to each state, and not more than one to every 
thirty thousand population, (I, 2, 3,) and the power to reduce 
the representation of a state for denying the right of suffrage 
to male citizens over twenty-one, except for crime or treason. 
(Am. XIV, 2.) 

2. The power to regulate elections for Senators and Representa- 
tives, in regard to the time, place and manner of holding such 
elections, except as to the place of choosing Senators. (I, 4, 1.) 

3. The power to fix the time of the annual meeting of Congress. 
(I, 4, 2.) 

4. The power to adjourn. This is not done by law, but by a 
concurrent resolution, and does not require the action of the 
President. But either house alone may by resolution adjourn 
for not more than three days at a time. The power to ad- 
journ includes the power to adjourn to some particular time 
or place. But neither house alone can change the place of 
sitting. 

5. The power to fix the salary of Senators and Representatives, 
together with the salary of all officers and employes of either 
house. (I, 6, 1.) 

B. Powers relating to the executive. — 1. The power to fix 
the day of choosing Presidential electors, and of their choosing 
President and ~V ice-President, (II, 1, 4,) with the limitation that 
the day shall be uniform throughout the United States. 

2. The power to canvaos the rotes for the President and Vice- 
President. (Am. XII.) This is the power implied in the 
words, "The votes shall then be counted." Congress has as- 
sumed the power under these words to canvass the votes and 
determine what votes shall be received, and what thrown out. 
The right of Congress to act as a canvassing board has been 
disputed; but the practice is now firmly established. 

3. The power to determine what officer shall act as President 
when there is no President or Vice-President. (II, 1, 6.) Such 
officer is an acting President only, and holds only till the 



Sec. 8.] POWERS OF CONGRESS. 147 

disability of the President or Vice-President is removed, or 
a President can be elected. 

4. The poiver to fix the salary of the President, but not to in- 
crease or diminish it during his term of office. (II, 1, 7.) 

5. The power to regulate the civil service of the United 
States. (II, 2, 2.) This includes the power to establish or 
abolish offices, and to fix salaries and duties of officers, and 
to regulate the manner of appointment of inferior officers. 

6. The power to control the reception of titles and presents by 
officers of the United States. (I, 9, 7.) No officer of the United 
States can accept any title or present from any foreign king 
or state, except with the consent of Congress. 

G. Powers relating to the courts. — 1. The poiver to fix the 
salaries of judges of the Supreme Court and of all other United 
States courts. (Ill, 1, 1.) 

2. The power to. regulate the appellate jurisdiction of the Su- 
preme Court. (Ill, 2, 2.) The original jurisdiction of the Su- 
preme Court is fixed in the Constitution. (Ill, 2, 2.) 

3. The power to regulate the jurisdiction of inferior courts. A 
power implied in the power to organize inferior courts. (I, 8, 

9; in, l.) 

4. The power to fix the place of trial for crimes committed out- 
side of any state. (Ill, 2, 3.) 

5. The poiver to declare the punishment for treason, but under 
the limitation that no attainder of treason shall work cor- 
ruption of blood or forfeiture, except during the life of the 
person attainted. (Ill, 3 2.) 

6. The poiver to forbid jury trials in lawsuits where twenty 
dollars or less is involved. (Am. VII.) 

D. Powers relating to the states. — 1. The power to allow 
States to levy duties, but the net produce of such duties shall 
be paid into the United States treasury, and the state laws 
on that subject shall be subject to the revision and control 
of Congress. (I, 10, 2.) 

2. The power to allow or forbid states to keep armies and navies 
in time of peace. (I, 10, 2.) 



148 CIVIL GOVERNMENT. [Art. I. 

3. The power to allow or forbid states to make compacts with 
other states or with foreign powers. (I, 10, 2.) 

4. The power to allow or forbid states to engage in war. (I, 10, 
2.) 

5. The power to prescribe the manner of proving the public 
records of one state in another. This must be by general 
law. (IV, 1.) 

6. The power to admit new states into the Union, with the limi- 
tation that no new state shall be formed within the boun- 
daries of another state, or by the junction of two states or 
parts of states, without the consent of the legislatures of the 
states concerned. 

7. The power to guarantee each state a republican form of gov- 
ernment. (IV, 4.) 

8. The power to propose amendments to the Constitution, which 
become parts of the Constitution by ratification of three- 
fourths of the states. (V.) For this the President's signa- 
ture is not required. 

E. Legislative powers. — 1. The power to prohibit the slave 
trade after 1808. (I, 9, 1.) 

2. The power to suspend the writ of habeas corpus when in 
cases of rebellion or invasion the public safety may require 
it. (I, 9, 2.) 

3. The power to make all appropriations of money from the 
treasury. This implies also the power to investigate all ex- 
penditures of money by any department of the government. 
(I, 9, 6.) 

4. The power to govern the territory of the United States, and to 
dispose of the public land and other property belonging to 
the United States. (IV, 3, 2.) 

5. The power to enforce the provisions of Amendments XIII, 
XIY. and XV, by appropriate legislation. (Am. XIII, 2; XTvY 
5; XV, 2.) 



SeC. 9.] NATIONAL LEGISLATION. 149 



SECTION IX.— PROHIBITIONS ON NATIONAL 
LEGISLATION. 

Clause 1. — The Slave Trade. 

The migration or importation of such persons as any of the states 
now existing shall think proper to admit, shall not be prohibited 
by the Congress prior to the year one thousand eight hundred 
and eight, but a tax or duty may be imposed on such importation 
not exceeding ten dollars for each person. 

The slave trade. — 

The United States has the honor of being the first na- 
tion to take steps to abolish the African slave trade. 
When this Constitution was adopted, ten states out of the 
thirteen had already prohibited the slave trade. But 
North Carolina, South Carolina and Georgia insisted on 
some guarantee that their slave trade should not be dis- 
turbed. It was finally compromised by this clause, 
which gave them twenty years in which to import 
negroes from Africa. 

The slave trade to foreign countries was prohibited in 1794, 
and the importation of slaves was prohibited in 1807, to take 
effect January 1, 1808, the very first day when it was consti- 
tutional to do so. 

Great Britain abolished the slave trade in 1807, a few days 
after our act was passed. 

The framers of the Constitution were ashamed to use the 
words "slave" or "slavery," and therefore used the word 
"persons" instead. 

Slavery is now abolished by the Thirteenth Amendment, 
and of course the slave trade with it is thus prohibited by 
the Constitution. 



150 CIVIL GOVERNMENT. [Art. I. 

Clause 2. — The Writ of Habeas Corpus. 

The privilege of the writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion the public safety 
may require it. 

I. Object of the writ.— 

The writ of habeas corpus is an old English process 
intended to release any person illegally imprisoned. 
Any person who is imprisoned without proper warrant 
or indictment can sue out a writ of habeas corpus before 
any judge or court commissioner. Unless the officer 
who has him in charge can show a legal warrant or other 
authority, the prisoner is discharged. The writ of 
habeas corpus is a guarantee of personal liberty against 
unjust imprisonment by officers. 

The words "habeas corpus" are the first two words of 
the old Latin form of "the writ, from which the writ is 
named. 

When the writ of habeas corpus is suspended, this 
•safeguard against arbitrary and illegal arrest is laid aside 
for the time being. To suspend the writ of habeas cor- 
pus, means to give government officers power to arrest 
and imprison anyone without a regular warrant or in- 
dictment. 

The writ can only be suspended when the public 
safety requires it, in case of rebellion or invasion. Mar- 
tial law then takes the place, partly or wholly, of civil 
law. Persons are then arrested, tried and punished by 
martial law, and no writ of habeas corpus can save them. 



Sec. 9.] NATIONAL LEGISLATION. 151 

This is a necessity of war, when the public safety over- 
rides all other considerations. 

II. Disputed questions. — 1. Who has power to suspend the 
writ? All agree that Congress has the power. But it is 
claimed by many that no one else has. The question whether 
the President or other executive officers have the right to 
suspend the writ, has never been decided by the courts. As a 
fact, the writ has been suspended several times by command- 
ing generals and by the President. 

2. Where can the writ be suspended? Only in that part of the 
country actually involved in the war. During the civil war a 
man named Mulligan was arrested for treasonable conspiracy 
in Indiana, tried by a court martial, and condemned to be ex- 
ecuted. But the Supreme Court released him on a writ of 
habeas corpus, on the ground that Indiana was not the seat 
of war, and therefore martial law could not lawfully be pro- 
claimed there. His offense was one to be tried by the civil 
courts, and liable to a less punishment than that of death. 

Clause 3. — Bills of Attainder and Ex Post Facto Laws. 

No bill of attainder or ex post facto law shall be passed. 

I. Bills of attainder. — 

A bill of attainder is a law inflicting punishment 
without trial. It was a common practice in England, 
some centuries ago, for Parliament to pass bills of attain- 
der. They answered all the ends of impeachment and 
much more. It was usual in such bills to prescribe the 
punishment of death, confiscation of property, depriva- 
tion of all honor and titles, and corruption of blood, so 
that the descendants could not inherit property through 
the person attainted. 

Such an act was an easy means of revenge upon political 
opponents, and was generally used for that end. It gave the 



152 CIVIL GOVERNMENT. [Art. I. 

accused no regular trial; it punished for acts that were not 
prohibited by law; it gave the accused little or no means of 
defense, and it punished his family as well as himself. The 
power to pass bills of attainder is therefore wisely forbidden 
(a) to Congress, and (&) to the state legislatures. (Sec. 10.) 

Persons who offend against the law may still be tried in the 
courts, and political offenses committed by public officers may 
be tried by impeachment, under careful limitations. 

This wise provision of our Constitution has taken the sting 
out of our political contests. 

II. Ex post facto laws. — 

An ex post facto law is one which punishes not only 
those who may afterwards break it, but those who have 
already done anything contrary to it, or one which adds 
a greater punishment to crimes already committed. 
This applies only to criminal laws, and not to civil laws. 
A civil law may be retroactive, and not violate this clause 
of the Constitution. It is plainly unjust to punish any- 
one for breaking a law which was not in existence when 
he did the act. This is also forbidden to the states as 
well as the United States. (Sec. 10.) 

Clause 4. — Direct Taxes. 

No capitation, or other direct tax shall be laid, unless in proportion 
to the census or enumeration hereinbefore directed to be taken. 

Direct taxes. — 

All direct taxes are required by the Constitution to be 
apportioned between the several states according to the 
representative population, exactly in the same ratio as- 
the Representatives in Congress are apportioned. As 
direct taxes are scarcely ever levied by the United 



Sec. 9.] NATIONAL LEGISLATION. 153 

States, this provision is not very important. It was 
originally intended to prevent any special tax being 
levied by the United States on slaves, which might be 
used to tax slavery, and thus make it unprofitable, in the 
same way that state banks, as banks of issue, were taxed 
out of existence. This was part of the compromise 
made between the North and South in the convention. 

No capitation tax has ever been levied by the United 
States, and but few direct taxes. 

The Supreme Court has decided that an income tax 
is a direct tax, and that it must therefore be levied in 
proportion to population. This practically prevents any 
income tax being levied. 

Clause 5.— Export Duties. 

No tax or duty shall be laid on articles exported from any state. 

I. Export duties forbidden. — 

Export duties are taxes laid on articles carried out of 
the country. It is the practice in many countries to tax 
both imports and exports. If exports are taxed, their 
price will be raised, and the products raised or manufac- 
tured in this country cannot be so profitably sold in for- 
eign countries, and perhaps cannot compete at all with 
the same products from foreign countries. An export 
duty usually tends to discourage home production. But 
import duties may be used so as to encourage home pro- 
duction, or at least not to harm it. For this reason, 
export duties are forbidden by this section. 



154 CIVIL GOVERNMENT. [Art. I. 

II. A disputed question — Are all export duties forbidden 
by this clause? — Probably they are. But it is claimed by 
•some that the intention of this clause is to prevent a discrim- 
ination against any one or more states, by export duties levied 
:in those states alone. They claim that an export duty levied 
equally throughout the Union is not forbidden by this clause. 

The courts have never been called upon to decide this case. 
But in all probability, they would decide any export duty 
whatever to be unconstitutional. For an export duty on any 
one article is a tax upon the productions of a few states for 
the benefit of the rest. Thus, an export duty on cotton would 
be a tax upon the productions of the Gulf states; an export 
duty on wheat and beef would be a tax on the productions of 
~4he interior states, and an export duty on manufactured 
goods would be a tax on the industry of the Eastern and Mid- 
dle states. 



Clause 6. — Commercial Eestrictions. 

-No preference shall be given by any regulation of commerce or 
revenue to the ports of one state over those of another; nor shall 
vessels bound to or from one state be obliged to enter, clear, or 
pay duties in another. 

Commercial restrictions forbidden. — 

The Constitution makes commerce entirely free be- 
tween the states, and makes unlawful any preference of 
the commerce of one state over that of another. 

While we were British colonies, the British govern- 
ment had put all sorts of restrictions on the commerce 
of the colonies, in order to favor British merchants at 
-fche expense of the colonies, and this was one cause of 
the Revolutionary War. 

The laws of several states, favoring their own com- 
anerce at the expense of other states, were among the 



SeC. 9.] NATIONAL LEGISLATION. 155 

causes that led to the adoption of this Constitution. 
Under the Constitution we have absolute free trade with- 
in the limits of the United States. 

Clause 7. — Appropriations and Accounts. 

No money shall be drawn from the treasury, but in consequence of 
appropriations made by law; and a regular statement and account 
of the receipts and expenditures of all public money shall be pub- 
lished from time to time. 

Appropriations and accounts required. — 

It is forbidden to pay out money except upon an ap- 
propriation, and all accounts must be published. This 
is to prevent frauds on the treasury. It does not pre- 
vent all frauds, but it makes them much more difficult. 
A fraud now is liable to be detected, not only by the 
executive officers, but also by Congress and by the 
people. 

Appropriations are voted by Congress each winter for the 
year ending June 30. The head of each department furnishes 
an estimate of what will be needed in his department for the 
ensuing" year. These estimates must go into details, and show 
how much is needed for each item of expense. These esti- 
mates are carefully considered in each house of Congress, and 
are frequently cut down. A separate appropriation bill is 
.generally made for each branch of the service. These appro- 
priation bills usually originate in the House of Kepresenta- 
tives. They are frequently amended in the Senate, and they 
may be vetoed by the President. 

The account of the receipts and expenditures of the govern- 
ment are published every year in the form of a report of the 
Secretary of the Treasury. 



156 CIVIL GOVERNMENT. [Art. T. 

Clause 8. — Titles of Nobility. 

No title of nobility shall be granted by the United States; and no 
person holding an office of profit or trust under them shall, with- 
out the consent of the Congress, accept of any present, emolument, 
office or title of any kind -whatever, from any king, prince, or for- 
eign state. 

I. No titles granted by Congress. — 

One of the fundamental principles of our government 
is, that all men are equal before the law. We cannot 
have a titled aristocracy without violating this principle. 
It is true that we cannot regulate social intercourse and 
make people treat one another as equals in society. 
Color, ancestry, office, wealth and culture will always 
create social distinctions. But before the law, every 
citizen of the United States is equal with every other. 
Ko titles of nobility give a few citizens an invidious dis- 
tinction above the rest. 

II. Foreign titles, offices, and presents. — 

The Constitution prohibits United States officers from 

accepting titles, offices or presents from foreign nations. 

These might easily become bribes to officers to betray 

their country. Such things have frequently been done 

in the history of other republics, and have periled their 

liberties. In case such a present is not meant as a bribe, 

it is easy to secure the consent of Congress to its being 

received. 

It is a usual courtesy of sovereigns to exchange presents. 
When the President receives such a present from a foreign 
sovereign, it is not meant for him as an individual, but for 



See. 9.] NATIONAL LEGISLATION. 157 

him as the head of our nation for the time being-. Such pres- 
ents are accepted, and kept as the property of the United 
States. If courtesy requires a present in return, it is voted 
by Congress. 

1. Officers of the several states are not prohibited by this 
Constitution from receiving- titles and presents from foreign 
powers; but they are generally prohibited by the state con- 
stitutions. 2. Citizens of the United States who do not hold 
office are not prohibited from accepting titles, offices or pres- 
ents from foreign sovereigns. And several Americans have 
^accepted office and received honors in foreign countries. 
These honors have been either for services rendered to those 
countries or for services rendered to the cause of science. 

An amendment was proposed by Congress in 1811, to pre- 
vent citizens of the United States taking titles, offices or pres- 
ents from foreign sovereigns, but it has never been ratified by 
"the state legislatures. 



APPENDIX TO SECTION IX. 

Additional prohibitions on Congress. — Besides the things 
prohibited in this section, the following things are expressly 
prohibited to Congress in other parts of the Constitution: 

1. To make any appropriation of money for the army for a 
longer term than two years. (I, 8, 12.) 

2. To increase or diminish the salary of the President dur- 
ing the period for which he is elected. (II, 1, 7.) 

3. To diminish the salary of judges during their continu- 
ance in office. (Ill, 1.) 

4. To make an attainder of treason work corruption of 
Talood or forfeiture, except during the life of the person at- 
tainted. (Ill, 3, 2.) 

5. To erect new states out of parts of states without the 
consent of the states concerned. (IV, 3, 2.) 

6. To impose religious tests for office. (VI, 3.) 

7. To make any law respecting an establishment of religion, 
-or prohibiting the free exercise thereof, or abridging the 



158 CIVIL GOVERNMENT. [Art. I_ 

freedom of speech or of the press, or the right of the people 
peaceably to assemble and to petition the government for a 
redress of grievances. (Am. I.) 

8. To make laws infringing any of the personal rights 
guaranteed in the first eight amendments. In all these 
amendments, except the first, Congress is not mentioned by 
name. The intention is to forbid not only Congress, but 
every branch of the government, legislative, executive, and 
judicial, from infringing these rights. 

9. To exercise powers not given it by the Constitution ex- 
pressly or by implication. (Am. X.) 

10. To re-establish slavery. (Am. XIII.) 

11. To question the validity of the public debt. (Am. XIV.) 

12. To pay rebel debts or claims for slaves. (Am. XIV.) 

13. To deny or abridge the right of citizens of the United 
States to vote on account of race, color, or previous condition 
of servitude. (Am. XV.) 



SECTION X.— PROHIBITIONS ON STATE 
LEGISLATION. 

Clause 1. — Absolute Prohibitions. 

No state shall enter into any treaty, alliance, or confederation; 
grant letters of marque or reprisal; coin money; emit bills of 
credit; make anything but gold and silver coin a tender in pay- 
ment of debts; pass any bill of attainder, ex post facto law, or law 
impairing the obligation of contracts, or grant any title of no- 
bility. 

I. To make alliances. — 

The states are forbidden to enter into any treaty, alli- 
ance, or confederation. The power to make treaties is 
a sovereign power, and is rightly reserved for the United 
States. If the states conld make separate treaties and 
alliances, there would soon be an end to the Union. 



Sec. 10.] STATE LEGISLATION. 15<> 

The way would be open for foreign intrigues. Some 
states wonld ally themselves with one nation, and some- 
with another; and when these foreign nations were at 
war with one another, they would be drawn into the war 
on opposite sides. It would be to the interest of foreign 
nations to foment every sectional difference; and we 
should have a civil war on our hands every few years,, 
even if we did not split into three or four separate na- 
tions. 

II. To issue letters of marque and reprisal.— 

If a state could authorize privateers, it could easily 
involve us in difficulties or war with foreign nations. 
Under the Articles of Confederation, each state could 
issue letters of marque and reprisal. But it is here 
wisely prohibited to the separate states. 

III. To coin money. — 

The power to coin money is given to the United States 
in section 8, and is here taken from the states. It is an 
attribute of sovereignty, by all nations reserved for the 
sovereign power. That sovereign power in this country 
is the United States, not the several states. 

Another reason is to secure a uniform currency all 
over the United States. If each state could coin money,, 
there might be as many different sets of coins as there 
were states, and there would be certain to be several 
different sets. Such a state of things would be very 
inconvenient for business. 



160 CIVIL GOVERNMENT. [Art. I. 

IV. To issue paper money. — 

To "emit bills of credit'' means to issue paper money. 
The same reasons that make it best to prohibit state coin- 
age also make it best to prohibit state paper money. 

No state can issue paper money, whether it is made 
a legal tender or not; but state bonds are not to be con- 
sidered as paper money. But a state could, until 1863, 
charter banks which should issue paper money, which 
people could take or not, as they chose. Since then the 
United States has assumed its perogative on this subject. 
It has taxed the old state bank bills out of existence; it 
has created a system of national banks ; and it has issued 
paper money, and made it a legal tender. 

V. To make anything but gold or silver legal 
tender.— 

A legal tender is anything which must be accepted 
in payment of debts, when offered. The present paper 
money of the United States is such a legal tender. This 
power of making something besides gold and silver a 
legal tender is a part of the power of controlling the cur- 
rency, which is forbidden to the states. 

But the states have the power to make gold and silver 
legal tender to any amount. And a state could make 
the silver coin of the United States a legal tender to any 
amount, even though by the United States law it is 
legal tender only in small amounts. 



SeC. 10.] STATE LEGISLATION. 161 

VI. To pass bills of attainder and ex post facto 

laws. — 

Bills of attainder and ex post facto laws are forbidden 
to the states as well as to the United States, so that snch 
unjnst laws can no more be passed anywhere in this 
country, 

VII. To pass laws impairing the obligation of 

contracts. — 

The states are forbidden to break contracts by law, 
but the United States can do it, and has done it. For in- 
stance, in the case of a bankrupt law, a state bankrupt 
law will operate only upon contracts made by its citizens 
after the law was passed. But a United States bankrupt 
law will release the bankrupt from the legal obligation 
for debts made before the law was passed as well as 
afterwards. 

But a contract which is for an immoral purpose, or which 
involves an immoral consideration, is never valid, and may 
always be broken. The obligation of these contracts is not 
impaired by the law annulling them, for they never had any 
obligation. 

And a state may prescribe under what conditions a contract 
shall be made, so as to cover future contracts, but not past 
ones. Thus a state may say what forms deeds and mortgages 
must have in order to be valid, but this will only be binding 
in regard to deeds and mortgages executed after the law 
was passed. 

These words of the Constitution thus reserve to the United 
States the power of impairing the obligation of contracts, 
and forbids it to a state. 

VIII. Charters of corporations. — Two famous decisions 
of the United States Supreme Court have denned the power 
U. S. Con.-H. 



162 CIVIL GOVERNMENT. [Art. L 

of states over the charters of corporations. In the celebrated 
case of Dartmouth College against Woodward, in which Dan- 
iel Webster appeared for the college, that court decided that 
charters are in the nature of contracts between the state and 
the corporation chartered, and therefore that such charters 
cannot be repealed or amended by the state without the con- 
sent of the corporation. Such corporations are therefore 
practically perpetual. 

But a more recent decision of the Supreme Court in re- 
gard to the railroad laws of some western states allows the 
state the right to control railroad companies in the exercise 
of their chartered powers, so far as these are public fran- 
chises. A railroad company, because it has a charter, is not 
for that reason freed from any obliga tion to the public which 
a private person would have who transported passengers and 
freight (as he might do with a hack and dray). All common 
carriers (that is, persons or companies who make a business 
of carrying passengers or freight) can be controlled in their 
charges and their methods of management, when it is for the 
public good, and railroad companies are not exempted from 
this state control because they have been chartered by the 
state. 

An additional reason exists in the case of railroads. The 
state exercises for them the right of veminent domain, and 
allows the railroad to take the land needed for its track and 
buildings with or without the consent of the owners of the 
land. As the state thus gives a railroad a public franchise 
for the public good, it is fair that the same law of the pub- 
lic good should be exercised to prevent extortion or mis- 
management of a railroad so as to injure the public. 

Nor could a state legislature, by a charter to a railroad com- 
pany, give up its right to control the tariff and the manage- 
ment of the railroads. That is a right inherent in the people, 
which the legislature, as the representatives of the people, 
can exercise for them, but which they cannot sell or give 
away. 

What is said about railroad corporations applies also to 



Sec. 10.] STATE LEGISLATION. 163 

all corporations which have public franchises. For instance, 
street railways, water companies, gas companies and electric 
lighting companies all control public franchises, and can 
therefore justly and legally be controlled in their public acts 
by the state, or by cities under their charters from the state. 
This right of the state to control corporations does not 
extend further than to the good of the public in general. But 
as far as the action of a corporation affects only its own 
members, and does not conflict with existing state laws, or 
with public policy, the state will not interfere. For instance, 
within these limits a state cannot interfere with the internal 
government of a church, or of a secret society, or of a literary 
association, or any other voluntary organization. It can pro- 
tect them in their property, and prevent their meetings being 
disturbed, but will leave them to manage their internal af- 
fairs according to their own rules. 

IX. To grant titles of nobility. — 

The states, as well as the United States, are forbidden 
to grant any titles of nobility. If this is forbidden to 
the United States, it certainly ought to be forbidden to 
the states. 

As a historical fact, it may be interesting to know that no 
American titles of nobility have ever been granted, except in 
the famously foolish constitution drawn up for Carolina by 
the philosopher John Locke. These titles soon died out, and 
no others have ever been created. Persons have come to this 
country who held titles in foreign lands, and have even ac- 
quired citizenship here; and American citizens have been hon- 
ored with titles abroad. But since our independence, no title 
of nobility has ever been made or recognized by our laws. 
Those who are nobles in foreign lands, here are simple cit- 
izens. 



164 CIVIL GOVERNMENT. [Art. I. 

Clause 2. — Conditional Prohibitions. 

No state shall, without the consent of the Congress, lay any im- 
posts or duties on imports or exports, except "what may be abso- 
lutely necessary for executing its inspection laws; and the net 
produce of all duties and imposts laid by any state on imports or 
exports, shall be for the use of the treasury of the United States; 
and all such laws shall be subject to the revision and control of 
the Congress. 

No state shall, without the consent of Congress, lay any duty of 
tonnage, keep troops or ships of "war in time of peace, enter into 
any agreement or compact with another state, or with a foreign 
power, or engage in Avar, unless actually invaded, or in such im- 
minent danger as will not admit of delay. 

I. To lay duties on imports and exports. — 

When the states could lay taxes as they pleased on im- 
ports and exports, it led to much injustice of one state 
toward the commerce of another, and much jealousy and 
rivalry between states. This was one of the great evils 
of the old confederacy which the Constitution was in- 
tended to remove. The Constitution intends to give the 
United States the complete control over foreign com- 
merce and commerce between the states, and to forbid 
any such control to the states. 

It would have been simpler to have forbidden the states ab- 
solutely from laying duties on exports or imports. But the 
convention meant to leave it open to Congress if it chose 
to let the states appoint revenue officers and collect duties 
under United States laws. The states had been collecting 
duties for themselves. And it might be convenient for a time 
to still leave it to the states, only making the duties uniform 
and paying the net revenue from duties into the United 
States treasury. 

But Congress at once assumed the power of laying duties, 



Sec. 10.] STATE LEGISLATION. 165 

and has never consented since to give up any part of that 
power to the states. The states have never collected duties 
under this clause, and probably never will. This clause, so 
far as it might authorize state custom houses, is practically 
obsolete. 

But the states may pass inspection laws to secure good 
measure in goods offered for sale, or to prevent goods danger- 
ous to health being sold. And they may charge fees for the 
inspection; enough to pay the expenses of the inspection, and 
no more. 

II. To impose tonnage duties. — 

Duties of tonnage are duties on ships according to the 
amount of freight they can carry. The tonnage is the 
amount of freight they can carry; thus a ship of a hun- 
dred tons burden is one that can carry a hundred tons of 
freight. A tonnage duty is a duty on commerce, and it 
is put under the control of Congress like all that relates 
to commerce. The consent of Congress is necessary be- 
fore a state can lay a tonnage duty. ~No such power has 
ever been given a state. 

III. To keep a standing army or navy. — 

No state can keep an army or navy in time of peace, 
without the consent of Congress. The national govern- 
ment usually will reserve that right to itself. But 
should an extraordinary occasion arise, Congress has the 
power to authorize a state or states to keep troops or 
ships of war in time of peace. In time of war, it may 
be very necessary for a state to raise an army or a navy 
for its own defense and that of other states. In that 
case the consent of Congress need not be asked. 



166 CIVIL GOVERNMENT. [Art. I. 

It is not intended by the words "keep troops" to pre- 
vent states organizing and arming their militia in time 
of peace as well as war. (Compare section 8, clause 
16, of this article, and Amendment II.) It is a stand- 
ing army that is forbidden. 

IV. To make agreements and compacts. — 

How do the agreements and compacts named here 
differ from the treaties, alliances and confederations 
named in the first clause of this section? In the one 
case, a state is prohibited absolutely from making them; 
in the other case, it is only required to gain the consent 
of Congress. 

The natural interpretation is, that these compacts and 
agreements refer only to such business transactions as 
states sometimes must have, as well as private individ- 
uals; while treaties, alliances and confederations refer 
to political agreements. The latter are absolutely for- 
bidden to the states. 

~No state can hold any political relations whatever, 
except as a member of the Union. It cannot have any 
political relations with other states or with foreign na- 
tions. That is all reserved for the United States. But 
a, state may have business relations with other states, or 
with foreign powers. But as these could easily pass 
into political relations, the power is reserved to the 
United States to control these business relations. Ex- 
amples of business relations between the states are, 
""questions of boundary, interests in land situated in the 



SeC. 10.] STATE LEGISLATION. 167 

territory of each, other, and other internal regulations 
for the mutual comfort and convenience of states border- 
ing on each other. Such compacts have been made 
since the adoption of the Constitution." (Story.) 

The consent of Congress to such compacts need not 
be expressed. It may be inferred from the legislation 
of Congress on the subject. 

V. To engage in war. — 

A state may engage in war if actually invaded or 
threatened with invasion; and as the necessity would be 
pressing, it would not be needful to wait for the United 
States authorities; but the state could defend itself at 
once with all the force at its command. But unless in 
self-defense, a state cannot make war, but must wait the 
decision of the United States government. If Congress 
should ever authorize one or more states to engage in 
war, it would not be a state war, but a United States war. 
There is no way in which some of the states can get into 
a war, defensive or offensive, without involving the rest 
in it too. If a state is invaded, it is also the United 
States which is invaded, and not only the state, but the 
United States, which will resent the invasion. If a state 
goes to war, the United States is responsible for it, and 
must either uphold it or put a stop to the war at once. 
The Constitution thus gives each state the right of self- 
defense, but reserves all other powers of war to the 
United States. 



168 CIVIL GOVERNMENT. [Art. L 

VI. Other prohibitions on the states. — In other parts of 
the Constitution, the states are prohibited from the following 
things: 

1. To deny the citizens of another state the privileges of a 
citizen. This is implied in Art. IV, Sec. 2, Clause 1. 

2. To refuse to give up persons charged with crime in other 
states. This is implied in Art IV, Sec. 2, Clause 1. 

3. To refuse to give up a person held to service in another 
state. This is implied in Art IV, Sec. 2, Clause 2. As slavery- 
is now abolished, this provision is now practically obsolete. 

4. To re-establish slavery. (Am. XIII.) 

5. To abridge the privileges or immunities of citizens of the 
United States. (Am. XIV, Clause 1.) 

6. To deprive any person of life, liberty or property without 
due process of law. (Am. XIV, Clause 1.) 

7. To deny any person within its jurisdiction the equal 
protection of the laws. (Am. XIV, Clause 1.) 

8. To fill offices with unpardoned rebels. (Am. XIV,. 
Clause 3.) 

9. To assume the rebel debt or claims for the loss of slaves. 
(Am. XIV, Clause 4.) 

10. To deny the right of citizens of the United States to 
vote on account of race, color, or previous condition of ser- 
vitude. (Am. XV.) 

The Supreme Court has also decided that the following 
powers are denied to the states, by implication: 

1. To interfere with the exercise of any authority belong- 
ing to the United States. 

2. To interfere with the property of the United States by 
taxation or otherwise. 

3. To lower the value of United States bonds or paper 
money by taxation. 



Appendix.] state and local government. 169 

APPENDIX TO PART III. 
STATE AND LOCAL LEGISLATION. 

I. State and local legislation. — 

In a centralized, republic, as in that of France, all 
legislative powers that are allowed to be exercised are 
vested in the one national legislature. But in a federal 
republic, like that of Switzerland, some legislative pow- 
ers are given to the national legislature, some to the state 
legislatures, and some are reserved by the people. The 
same distinction exists between the legislative powers in 
limited monarchies. In Great Britain and Ireland, Par- 
liament has all the legislative powers of the three king- 
doms; but in the Empire of Germany the Reichstag has 
only a part of the legislative powers, and a part are ex- 
ercised by the states in its Landtag. 

The United States Constitution draws the line be- 
tween the powers of the national and the state legisla- 
tures, and also prohibits certain legislative powers to one 
or to both of them. This was a necessity of the situa- 
tion when a national government was organized for a 
federal republic composed of separate states. 

But the idea of local self-government is older than 
the formation of our national government, and attaches 
not only to the states, but to smaller divisions. It ex- 
isted in each of the states when the Constitution was 
adopted, and in the colonies which preceded the states, 
and was brought to America from England, where it 



170 CIVIL GOVERNMENT. [Art. I. 

liad existed in varying forms since the Anglo-Saxon set- 
tlement of Britain. 

The principal local subdivisions in England when this 
country was settled were the county, the parish, and the 
Thorough. These were brought over to America by the 
English colonists, and in the colonies, as in the mother 
-country, local matters were largely left to local action. 

II. Three types of local government. — 

There were, when the United States Constitution was 
adopted, three types of local government in the three 
great divisions of the country. 

The Southern states had the county government, the 
New England states the town government, and the 
Middle states the mixed town and county government. 

The Southern county government was substantially 
the same as the English county government, and was 
aristocratic. Most of the local powers were in the 
hands of county officers who were appointed by the 
.governor from the local aristocracy, and after the state 
-churches were abolished the parishes had very little left 
to do. The counties were represented in the state legis- 
lature, not the parishes. 

The New England town government was democratic. 
The voters assembled in town meeting and legislated 
for the town and elected its officers. There was also a 
county government, but with very limited powers. The 
towns were represented in the state legislature, not the 
•counties. 



Appendix.] state and local government. 171 

The Middle states had various combinations of town 
and county government. The New York type was the 
combination of a Massachusetts democratic town gov- 
ernment with a Virginia aristocratic county govern- 
ment, but with a county board of supervisors — one 
member elected by each town. 

Since then the growth of the democratic idea has led 
to county officers usually being now elected instead of 
appointed, and to the adoption of the New York type 
of local government, or some modification of it, through- 
out the Northwest. More than half the population of 
the United States now have a local government consist- 
ing of a democratic county and town government, en- 
abling the people of each town and county to decide 
for themselves their own local affairs, without reference 
to the state legislature or executive. 

When the United States Constitution was adopted 
nearly the whole population lived in the country. Now 
more than half live in cities and villages. The English 
boroughs each had a charter, and so our villages and 
•cities now all have charters from the state legislature. 
In many states general laws have been passed under 
which all villages or cities are incorporated. These 
charters or acts of incorporation are in the nature of 
local constitutions for the cities and villages, and the 
state laws governing town and county organization are 
In the nature of constitutions for the towns and counties. 



172 CIVIL GOVERNMENT. [Art. I. 



WOEK FOE THE STUDENT. 

1. The county government. — 1. Locate and bound your 
county. Does your state have county commissioners or 
county boards of supervisors? 

2. If there are county commissioners, are there three or 
five in a county, or are there a greater number? 

3. How are they elected, when, and for what term? 

4. If there is a county board of supervisors, how is that 
board composed? 

5. What other county officers do you have, such as sheriff, 
county clerk, register of deeds, and superintendent of 
schools? 

6. How are each of these chosen, when and for how long 
a term? 

7. How are vacancies filled in each of these offices? 

8. What salary, or fees, are paid each of these officers? 

9. What are the powers and duties of the county board, or 
county commissioners? 

10. What are the powers and duties of each of the other 
county officers? 

11. Give the names of the persons now filling each of these 
offices in your own county. 

II. The town government. — 1. Do you have town (or 
township) government in your state? 

2. If so, are you in a town (or township), or are you in 
a village or a city? 

3. If you are in a village, has it an entirely separate juris- 
diction, or is it also a part of the town? 

4. If you are in a town, what is its name, and how is it 
located and bounded? 

5. If you live in a state having town government, even if 
you are in a village or city, inform yourself as to the system 
of town government. 

6. Is there a town meeting of the voters, and what are the 
powers of the town meeting? 



Appendix.] state and local government. 173 

7. Do you have town supervisors, or selectmen, or township 
trustees? 

8. How many are there of the above officers, how elected, 
and for what term? 

9. What other town officers do you have, such as town clerk, 
constables, assessors, justices of the peace, etc.? 

10. How are each of these officers chosen, when and for 
how long- a term? 

11. How are vacancies filled in each of the above offices? 

12. What salary or fees are paid each of the above officers 
in you- town? 

13. What are the powers and duties of the town board of 
supervisors, selectmen, or township trustees? 

14. What are the powers and duties of each of the other 
town officers? 

15. Name the persons now filling- each of these offices in 
your town. 

III. Subdivisions of the town. — 1. Do you have the dis- 
trict system of school government? 

2. If so, what are the district officers, and when are they 
elected? 

3. Do women vote in the election of school district officers 
in your state, and are women eligible to school offices? 

4. What are the powers of a school district meeting? 

5. What are the powers and duties of the school district of- 
ficers? 

6. Name the school officers of your town or school district. 

7. Have you separate road districts in your town? 

8. If so, how are the supervisors of highways or pathmas- 
ters chosen, and what are their powers and duties? 

IV. Village government. — 1. Do you live in a village? 

2. If not, name one or more villages near you. 

3. Do you know whether these villages have an entirely sep- 
arate organization from that of the town in which they are 
located? 

4. Is there a general law in your state for the organization 
of villages, or does each village have a special charter? In 



174 CIVIL GOVERNMENT. [Art. iL 

case there is a general law, do the villages with which you, 
are acquainted have special charters for any reason? 

5. How is the village board composed, how is it elected,, 
and for how long a term? 

6. What other officers are there in the village? 

7. How are these officers chosen, and for how long a term?' 

8. How are vacances filled? 

9. What are the powers and duties of such officers? 

10. What is the compensation of such officers, by fees or by- 
salary ? 

11. If you live in a village, name all the village officers.-. 
V. City government. — Do you live in a city? 

2. If not, name one or more cities near you, of which youi 
know something. 

3. In your state are cities organized under a general law 
or does each city have a special charter? In case there is a* 
general law, is the city you specially know about organized, 
under that law, or under a special charter? 

4. In your city, or the one of which you know something,, 
how is the mayor elected, when and for what term? 

5. Does the legislative body of the city consist of one or- 
of two branches, and what are they called? 

6. How are its members elected, when and for what term? 

7. What are the principal officers of the city besides these ?.* 

8. How are these officers chosen and for how long a term?,'' 

9. How are vacancies filled? 

10. What are the powers and duties of each? 

11. What is the compensation of each? 

12. Name the persons now filling each of these offices*. 



f a*t W. 



Ube Executive* 



As for an absolute monarchy, as it is called, (that is to say, 
when the whole state is wholly subject to the will of one per- 
son, namely, the king-,) it seems to many to be unnatural that 
one man should have the entire rule over his fellow citizens, 
when the state consists of equals. . . . And for this rea- 
son it is as much a man's duty to submit to command as to 
assume it, and this also by rotation; for this is law, for order 
is law; and it is more proper that the laic should govern, than any 
one of the citizens. Upon the same principle, if it is advantag-e- 
ous to place the supreme power in some particular persons, 
they should be appointed to be only guardians and servants of the 
laws. — Aristotle, Politics, Book III, ch. 16. 



Sec. 1.] THE EXECUTIVE. 177 



ARTICLE II. 

SECTION I.— ORGANIZATION. 
Clause 1. — In Whom Vested. 

The executive power shall be vested in a President of the United 
States of America. He shall hold his office during the term of 
four years, and together with the Vice-President, chosen for the 
same term, be elected as follows: 

I. Executive department carries out the laws. — 

As the legislative department of the government is 
to make the laws, so the executive department of the 
government is to carry out and enforce the laws. In 
making laws we need deliberation, and the combined 
wisdom of many. In executing the laws we need the 
decision and force which a single will can give. There- 
fore, as the legislative power is vested in a Congress of 
two houses, each composed of many persons, represent- 
ing all parts of the country and all interests, so the ex- 
ecutive power is vested in one person, assisted by many 
others under his direction. 

The chief executive of this country is not called king 
or emperor, because that would imply that he inherited 
his place as of right. He is called simply President. 

II. The executive power is made distinct from 

and independent of the legislature. — 

Under the Confederation, Congress when in session 
was the executive as well as the legislative department 

U. S. CON.-12. 



178 CIVIL GOVERNMENT. [Art. II. 

of the government; and when Congress was not in ses- 
sion, a committee of Congress was the executive. It 
was found by experience that the legislative and execu- 
tive powers could not be combined profitably. Besides 
the general weakness of the government under the Con- 
federation, there was a special weakness of action. Con- 
gress could pass laws and resolutions, but it could not put 
them into effect. So keenly was this felt, that no op- 
position was made in the Constitutional Convention to 
an executive distinct from and independent of Congress. 
"We thus return to the usual form of representative gov- 
ernments, a government in which the power that makes 
the laws and the power that executes them are kept dis- 
tinct from and independent of each other. This was the 
form of the English government at that time, and it had 
been of the colonial governments. 

In the case of those states which during- and after the 
Revolution made their executives dependent on their legisla- 
tures, experience had shown the same defect as in the Con- 
federation. And these states also soon returned to the typical 
form of representative government — a government consisting 
of three distinct parts, legislative, executive, and judicial, 
each independent of the other. 

The most noteworthy exception to this is the modern Eng- 
lish cabinet government. Without any express authority of 
law, the custom has grown up in England that the leader of 
the party in power in the House of Commons shall be Prime 
Minister, and shall appoint for his associates in the cabinet 
the chiefs of his own party. In this way the House of Com- 
mons has made itself virtually the executive as well as the 
legislative body. This has worked well enough in England, 
thus far. But the attempt to carry out the same policy in 



SeC. 1.] THE EXECUTIVE. 179 

France has not succeeded very well, and it is a serious ques- 
tion whether the English cabinet government will always 
work well. 

In Germany the ministers are appointed by the Emperor, 
and hold office without regard to the wishes of the Reichstag. 
The executive is thus separate from and independent of the 
legislature. 

III. The executive power is vested in one man. 

The essential thing in a good executive is energy of 
action. This can only be secured by putting power and 
responsibility in the hands of one man. ~No council or 
committee will act with such decision, steadfastness, 
secrecy, activity and dispatch as one competent man 
will do. 

Where several persons are associated together in any 
governing body, there are sure to be differences of 
opinion and party spirit, and there are apt to be personal 
jealousies and secret intrigues. These are fatal to any 
prompt or decisive action, which is the very thing needed 
in an executive. The experience of the Confederation 
taught the framers of the Constitution that it is safer to 
put the executive power in the hands of one man than 
to vest it in a council. The experience of all civilized 
governments confirms this. 

IV. The executive is made responsible to the 

people. — 

An irresponsible, unlimited executive is a despotism. 
The executive ought to have power, but not irresponsible 



180 CIVIL GOVERNMENT. [Art. II. 

or -unlimited power. If the President could not be 
called to account for his actions, he would be able to do 
what he pleased, and might usurp power in one way 
or another, until he became monarch of a kingdom in- 
stead of president of a republic. 

The President is limited in his powers by this Consti- 
tution, which defines his duties. Should he overstep 
that limit, or otherwise grossly betray the trust confided 
in him by the people, he could be impeached and re- 
moved from office. 

But he is held responsible to the people in a far more 
effectual way by being elected for a limited term. The 
fact of election gives the people an opportunity to have 
such a President as the majority of them wish. Even 
if they should be deceived in their choice, or if the 
President, after his election, should be led astray by some 
foolish policy or some ambitious design, he cannot do 
much mischief or get many persons to help him in any 
very foolish or dangerous designs in the short time he 
has to rule. 

On the other hand, the hope of re-election will lead 
a President to perform the duties of his office and to 
carry out the wishes of the people as faithfully as he can. 
Thus the executive is limited and made responsible 

1. By being the choice of the nation. 

i2. By his term of office being short. 

3. By his hope of re-election. 

4. By the fear of impeachment. 



SeC. 1.] THE EXECUTIVE. 181 

V. All executive officers are agents of the President. — 
The executve power is vested in the President. But of course 
it is impossible for him to do everything- himself. Nearly all 
the work of the executive department is done by officers of 
various kinds. As these officers are appointed by the Pres- 
ident, or by other officers whom he appoints, and as they 
may be removed at pleasure, they are for all practical pur- 
poses his agents or clerks, and what they do he may be said 
to do. For instance, the act of collecting the customs duties 
is an executive act. The President, however, cannot collect 
those duties himself in all the ports of the United States, but 
he appoints the Collector of Customs and his chief assistant in 
each port, who, with the assistance of clerks working under 
their direction, collect the customs. But as these officers 
are responsible to the President for the faithful performance 
of their duties, and can be removed by him, it is really the 
President who collects the customs. If there is corruption 
and mismanagement in the New York custom house, for in- 
stance, it is the President's duty to see that it is stopped by 
removing the guilty officers; and if he does not do so, he 
makes himself responsible for the corruption. So, also, with 
every branch of the service. The executive power is vested in 
the President, but that power is carried into effect by the 
various executive officers. 

But these officers are not merely agents of the President; 
they are agents of the people. The executive power is in- 
trusted to the President to be used for the public good, and 
according to law. These officers are not merely subject to 
the President; they are also subject to the law, and therefore, 
in some degree, to the law-making body. Congress controls 
the subordinate executive officers in the following ways: 

1. Congress creates by law the offices which they fill. 

2. Congress can abolish any of these offices by law, and thus 
indirectly remove an officer. 

3. These officers are paid by appropriations made by act of 
Congress, which may be withheld, and the officers thus be 
compelled to resign for lack of pay. 



182 CIVIL GOVERNMENT. [Art. II. 

4. Congress, or either house, can appoint an investigating 
■committee, who will examine into the conduct of any officers 
of the government, and publish the results to the people; 
thus, if reform is needed, rousing public sentiment to demand 
a reform. 

5. Congress, or either house, can pass a resolution request- 
ing the President to remove certain officers. 

6. In cases of flagrant misconduct, if the President should 
refuse to remove the guilty official, the House of Kepresenta- 
tives can impeach him; and if found guilty by the Senate, he 
will be removed from office. 

In one or more of these ways Congress can, to a large ex- 
tent, prevent or punish corruption or treason in office. If the 
President should undertake to carry out some foolish or am- 
bitious project, he would need the assistance of many officials 
to do it. But Congress can always interfere with any such 
designs, by some of the methods named above. In addition 
to this, the Senate has also a share in the President's appoint- 
ments, as we shall see. 

VI. Term of office.— 

The President's term of office is four years. This is 

twice as long as that of a Eepresentative, and two-thirds 

as long as that of a Senator. 

The term of office of President, Vice-President, Kepresenta- 
tives and Senators begins and ends on the fourth of March 
in the odd years (except when a vacancy is filled). On the 
fourth of March, at noon, in every odd year, the terms of office 
of all Eepresentatives and of one-third of the Senators come 
to an end, and the terms of office of their successors begin. 
Every other odd year, on the fourth of March, at noon, the 
terms of office of the President and Vice-President also come 
to an end, and the terms of office of their successors begin. 
As the election for President and Vice-President takes place 
every leap-year, this term of office begins on the fourth of 
March in the year next following each leap-year. With this 



SeC. 1.] THE EXECUTIVE. 183 

clue, the student can easily remember the years of each Pres- 
idential term, except where cut short by death. 

VII. Re-election of the President.— The letter of the Con- 
stitution does not forbid the re-election of a President any 
number of times. But it has become a well understood cus- 
tom, though never formally enacted, that the President may 
be re-elected once, but no more. This custom was begun by 
Washing-ton when he declined a third term, on the ground 
that two terms are enough for a President. It was con- 
firmed by the action of Jefferson in also declining a third 
term, and by the constant practice of the country since then. 
Some Presidents have wished a third term, but the people 
have refused to grant it. It may now be considered a settled 
part of the unwritten Constitution, that a President may be 
elected twice, but no more. 

VIII. The Vice-President.— 

The Vice-President is elected for two purposes: 

1. To fill the place of President when there is a 
vacancy in that ofhce. 

2. To preside over the Senate meanwhile. When the 
Vice-President becomes President, he does not preside 
over the Senate. 

Four cases have occurred in which the Vice-President has 
become President. At the death of President Harrison, Vice- 
President Tyler became President; at the death of President 
Taylor, Vice-President Fillmore became President; at the 
death of President Lincoln, Vice-President Johnson became 
President; at the death of President Garfield, Vice-President 
Arthur became President. No case has occurred in which 
the Vice-President has become President for any other reason 
than the death of the President. 



184 CIVIL GOVERNMENT. [Art. II. 

Clause 2.— Presidential Electors. 

Each state shall appoint, in such manner as the legislature thereof 
may direct, a number of electors, equal to the whole number of 
Senators and Representatives to which the state may be entitled 
in the Congress; but no Senator or Representative, or person 
holding an office of trust or profit under the United States, shall 
be appointed an elector. 

I. The President elected indirectly. — 

In the Constitutional Convention it was first voted 
that the President should be elected by Congress. But 
on further consideration, the plan was adopted of elect- 
ing him by Presidential electors. The Convention did 
not intend that the President should be elected by the 
people. They thought that the chief of the nation 
ought not to be elected by the passions and prejudices 
that often control a popular election, but by the calm 
judgment of a few of the best men of each state. 

The idea was a fine one in theory; but in practice it 
did not work as its authors expected it would. In actual 
practice the President is elected by the people indirect- 
ly. The electors are always pledged beforehand to vote 
for certain persons for President and Vice-President; 
and they are only so chosen because they are so pledged. 
The Presidential electors have never failed to vote for 
the candidate of their party, except in the case of the 
death of Horace Greeley, who died after the electors 
were appointed, and before they met. In that case the 
Democratic electors voted for several different persons, 
according to their own individual preferences, as it made 
no difference with the result. 



Sec. 1.] THE EXECUTIVE. 185> 

II. Appointment of Presidential electors. — 

The manner of choosing Presidential electors is left 
to the several states. The following different methods- 
have been followed in some or all of the states: 

1. They have been chosen by the state legislature. 
This was the usual method at first. 

2. They have been chosen in several states by the 
people voting by districts. This would be the fairest 
method, and would represent the will of the people most 
accurately, if all the states chose their electors in that 
way, and if the districts were all fairly apportioned. 
Under this plan, a state will generally choose some of 
its electors from one party and some from the other,, 
while under either of the other plans, the party which 
has a majority, however small, in the state, will carry all 
the electoral votes of the state. 

3. They are now chosen in all the states by vote of 
the people on a general ticket. Whichever party car- 
ries the state has all the electoral votes of the state. 

The case has several times occurred that two smaller parties- 
in one state have combined against the strongest party on 
an electoral ticket, divided between the two, and have thus 
carried a "fusion ticket." In this way the electoral vote of 
a state has several times been divided. The case has also 
occurred, when the vote was very close, that one or two elec- 
tors on the minority ticket have "run ahead of their ticket," 
and thus have been elected while all the rest of the electors 
of their party in the state have been defeated. 

The power of determining the method of choice of Pres- 
idential electors is absolutely in the power of each state leg- 
islature, and it is possible for a legislature at any time when 



186 CIVIL GOVERNMENT. [Art. II. 

a Presidential election is pending* to repeal the state law by 
which, electors are chosen by the people of the state, and then 
proceed to elect them itself. The objection to such action 
would be that it would be a reversal of the unwritten consti- 
tution — the political habits of the people. 

III. Qualifications and number of Presidential 
electors. — 

Only one qualification is prescribed. No Senator or 
Representative, or any United States officer, can be a 
Presidential elector. This was intended to keep the 
electors as free as possible from personal interests in the 
result of the election. But as electors now are only ma- 
chines to cast certain votes, this provision is of no prac- 
tical importance. It has been evaded in various ways. 

The number of electors is the same as the num- 
ber of Senators and Representatives to which the state is 
entitled in Congress. The small states thus have a 
greater voice in the election of President than their pop- 
ulation would entitle them to. 

Clause 3. — Election oe President and Vice-President. 

Twelfth Amendment. 

The electors sh.aU meet in their respective states and vote by ballot 
for President and Vice-President, one of whom, at least, shall not 
be an inhabitant of the same state with themselves; they shaU 
name in their baUots the person voted for as President, and in dis- 
tinct ballots the person voted for as Vice-President, and they shaU 
make distinct lists of all persons voted for as President, and of all 
persons voted for as Vice-President, and of the number of votes for 
each; which lists they shaU sign and certify, and transmit sealed 
to the seat of government of the United States, directed to the 
President of the Senate. The President of the Senate shall, in the 
presence of the Senate and House of Representatives, open all the 



SeC. 1.] THE EXECUTIVE. 187 

-certificates, and the votes shall then be counted; the person hav- 
ing the greatest number of votes for President shall be the Presi- 
dent, if such number be a majority of the whole number of elec- 
tors appointed; and if no person have such majority, then from 
<the persons having the highest numbers not exceeding three on 
the list of those voted for as President, the House of Representa- 
tives shall choose immediately, by ballot, the President. But in 
choosing the President, the votes shall be taken by states, the 
representation from each state having one vote; a quorum for 
this purpose shall consist of a member or members from two- 
thirds of the states,^ and a majority of all the states shall be 
necessary to a choice. And if the House of Representatives shall 
not choose a President whenever the right of choice shall devolve 
upon them, before the fourth day of March next following, then 
the Vice-President shall act as President, as in the case of the 
death or other constitutional disability of the President. 

The person having the greatest number of votes as Vice-President 
shall be the Vice-President, if such number be a majority of the 
whole number of electors appointed; and if no person have a ma- 
jority, then from the two highest numbers on the list the Senate 
shall choose the Vice-President; a quorum for the purpose shall 
consist of two-thirds of the whole number of Senators, and a ma- 
jority of the whole number shall be necessary to a choice. But 
no person constitutionally ineligible to the office of President shall 
be eligible to that of Vice-President of the United States. 

1. Election by electors. — 

The Presidential electors thus chosen elect a Presi- 
dent and Vice-President, if they can, under the follow- 
ing restrictions: 

1. They meet in their respective states. They do 
;not all meet in one place. They meet in their own 
states, and usually at the state capitals. The object of 
this was to prevent bargaining for votes, which would be 
•easy if they all met in the same place. Vacancies in 
the College of Electors in any state are filled in such way 
as that state has prescribed by law. This is done in most 
.■states by the electors themselves. If a vacancy exists 



188 CIVIL GOVERNMENT. [Art. IL. 

by reason of death, absence, or ineligibility of an elector,, 
the College of Electors selects some one to fill the 
vacancy, and then proceeds to vote for President and 
Vice-President. 

2. They vote by ballot. The vote by ballot is fre- 
quently used in elections in the United States, for the 
purpose of allowing the voter to conceal his vote, and 
thus to be more independent. It is used for that pur- 
pose here. But as the Presidential electors have ceased 
to be independent voters, and as everyone knows how 
they will vote long before they meet, this provision is- 
practically useless. 

3. Tliey ballot for President and Vice-President 
separately. This avoids the error of the old process,. 
which led to this amendment. 

4. Only one of these can live in the same state with 
themselves. This is to prevent both President and 
Vice-President being from the same state. They have 
usually been not only from different states, but from; 
different sections of the country. 

5. A majority of the electors is required to elect. A. 
majority is more than half of the whole number of votes.. 
A candidate may have the largest number of votes and 
not have a majority, and thus fail to be elected by the- 
electors. 

6. The electors vote but once. This follows from 
their meeting in different places. Before the invention of 
the telegraph it would have been impossible to have even 
got the news of the result in time to vote a second time,. 



Sec. 1.] THE EXECUTIVE. 189 

if there was no election the first time. And even now it 
would be quite inconvenient for more than forty sets of 
men, meeting in as many different places, to keep on 
voting and announcing the results of the ballot. The 
electors must therefore elect a President or Vice-Pres- 
ident on the first ballot, or not at all. 

II. Counting the votes. — 

The votes thus cast are counted as follows: 

1. The electors in each state make a list of all persons 
voted for by them for President and a list of all persons 
voted for by them for Vice-President. They sign these 
lists and certify that they are genuine. All the electors 
in each state sign and certify these lists. 

2. Three sets of these lists exactly alike are made 
out, of which one is sent to the President of the Senate 
by mail, another by special messenger, and the third is 
delivered to the judge of the United States district court 
for the district in which the electors meet. If the cer- 
tificates of election from any state are not received by 
the fourth Monday in January, the Secretary of State is 
required to send a special messenger to the district judge 
for the certificate in his possession. 

3. The President of the Senate, who may or may not 
be the Vice-President (I, 3; 4 and 5), presides over a 
joint convention of the Senate and House of Represen- 
tatives. In their presence he opens the certificates, 
which are read by clerks, and the votes for each can- 
didate are added up and announced by tellers appointed 



190 CIVIL GOVERNMENT. [Art. 11^ 

from each house. !No provision is made for the case of 
a disputed election of Presidential electors in any state, 
except that time is now given for such a case to be 
tried in the Supreme Court of the state before the 
electors meet. 

4. If any candidate for President is found to have a 
majority of all the electoral votes cast for President, he- 
is thereupon declared elected. And if any candidate f or 
Vice-President is found to have a majority of all the 
electoral votes cast for Vice-President, he is declared 
elected Vice-President. If in either case no one has a 
majority, there is no election by the electors. 

III. Election of President by the House of Rep- 
resentatives. — 

"When the Presidential electors fail to elect a Presi- 
dent, the right of election goes to the House of Repre- 
sentatives under the following conditions: 

1. No candidate can be voted for except the three 
who received the highest number of votes for President.. 

2. The vote is by ballot. 

3. The vote is by states, each state having one vote.. 
The vote of each state is given as the majority of the 
members from that state who are present may direct. 
If the vote of a state is equally divided, that fact is re- 
ported, and the vote of that state is not given to any can- 
didate. 

4. A quorum for the purpose of voting for a Presi- 
dent must consist of a member or members from two- 



SeC. 1.] THE EXECUTIVE. 191 

thirds of the states. A quorum for ordinary purposes 
consists of a majority of the members elected. 

5. A majority of all the states is necessary to a 

choice. If a state is divided, its vote helps to prevent 

an election. 

Thus in 1801, when the election was thrown into the House 
of Representatives, there were sixteen states; of these, eight 
voted for Jefferson, six for Burr, and two were divided. 
There was therefore no election. Thirty-five times the House 
voted with the same result. On the thirty-sixth ballot, some 
members from the two divided states, who had voted for Burr, 
purposely left the room. The members from those states who 
remained could then give a majority in each for Jefferson, so 
that he had ten states and Burr six, and Jefferson was elected. 

6. The House must proceed at once to elect a Presi- 
dent. If they fail to elect before the fourth of March, 
then the Vice-President just elected becomes President. 
The reasons for this are, that the President's term of 
office must begin on the fourth of March, and that the 
House of Representatives ceases to exist on the same 
day, and the new House comes into power. 

IV. Election of Vice-President by the Senate. — 

% When the Presidential electors fail to elect a Vice- 
President, the choice devolves upon the Senate, under 
the following conditions: 

1. No candidate can be voted for except the two who 
received the highest number of votes for Vice-President. 
This insures a speedy election. 



192 CIVIL GOVERNMENT. [Art. II. 

2. A quorum to elect a Vice-President is two-thirds 
of the whole number of Senators. 

3. A majority of all the Senators is necessary to a 
choice. It is not merely a majority of all present and 
voting, bnt a majority of all. 

V. The old method of electing President and Vice-Presi- 
dent. — When the Constitution was first adopted it prescribed 
a method of electing President and Vice-President somewhat 
different from the one now in use. The new method was 
adopted by an amendment to the Constitution in 1804, in 
consequence of the danger to the country shown in the dis- 
puted election of 1801. 

The essential difference between the old plan and the new 
is, that under the old plan each elector voted for two per- 
sons, without saying which one he wished for President or 
Vice-President, while under the present plan each elector 
votes for two persons, distinctly naming one for President 
and the other for Vice-President. All the other changes are 
such as are made necessary to carry out this change. 

Under the old plan, the President might easily be of one 
political party, and the Vice-President of the other party. 
But under the present plan, that could only occur in case the 
Presidential electors failed to elect, and the Senate and House 
of Eepresentatives were controlled by opposite parties. 

VI. The disputed election of 1876. — Just as the disputed 
election in 1801 called the attention of the country to one de- 
fect in the Constitutional provision for the election of Presi- 
dent and Vice-President and led to the twelfth amendment, 
so another disputed election called the attention of the coun- 
try to another defect. 

No provision is made in the Constitution for the case of a 
disputed election in a state. It was intended that the cer- 
tificate of the proper officer in each state should attest the 
election of the electors, and that their certificate should attest 
^their own vote. An extraordinary case arose in 1877, when 



Sec. 1.] THE EXECUTIVE. 193 

Hayes and Tilden, the rival candidates, each had a certificate 
of election from a set of electors in several states. As the 
Senate and House were controlled by opposite parties, neither 
would yield. Just before the time for counting the votes, 
an extraordinary tribunal was created, consisting" of five 
Senators, five Representatives, and five Judges of the Supreme 
Court, to whose decision these contested cases were referred. 
All of them were decided in favor of Hayes, and he was de- 
clared elected President by one majority. 

It was claimed by one side that the Constitution gave the 
President of the Senate the right to decide which were the 
legal electoral votes; and it was claimed by the other side 
that Congress or either house could refuse to receive the vote 
of any state where there was a dispute in regard to it. Both 
these claims were preposterous. The fact is, the Constitution 
is defective at this point, in not providing for the contin- 
gency, and it should be amended. 

Clause 4. — Time of These Elections. 

The Congress may determine the time of choosing the electors, 
and the day on which they shall give their votes; which day shall 
he the same throughout the United States. 

Time of Presidential elections. — 

Congress has determined the time of these elections 
by law. The following table will aid the memory: 

1. Election of electors, the Tuesday after the first 
Monday of November (in each leap year and all cen- 
tennial years), the day on which Representatives are 
also chosen. 

2. Electors vote for President and Vice-President 
the second Monday in January. 

3. The Secretary of State sends for missing returns 
the fourth Monday in January. 

U. S. Con.— 13. 



194 CIVIL GOVERNMENT. [Art. II. 

4. The votes are counted the second Wednesday in 
February, and thereafter till a President is elected, but 
not longer than till the fourth of March. The same 
dates hold for the Senate in electing a Yice-President. 

5. The President is inaugurated the fourth of March* 

If that falls on Sunday, he is inaugurated on the fifth. 

The long time now given between the election of electors 
and their meeting to vote for President and Vice-President is 
given to allow all questions relating to who are the lawful 
electors in each state to be settled by the proper authorities 
in each state according to its own laws. In most states there 
is now a special provision for trying all such disputes at once 
in the highest court of the state. The time of the meeting 
of electors has been changed from the first Wednesday in, 
December to the second Monday in January, in consequence 
of the experience in the disputed election of 1876. 

Clause 5. — Qualifications of President and 
Vice-President. 

No person except a natural-born citizen, or a citizen of the United 
States at the time of the adoption of this Constitution, shall be^ 
eligible to the office of President; neither shaU any person be 
eligible to that office who shall not have attained to the age of 
thirty-five years, and been fourteen years a resident within the- 
United States. 

I. Citizenship. — 

The President mnst be a natural-born citizen of the 
United States. The President must be a citizen by in- 
heritance, not by adoption. 

He cannot be a naturalized citizen; but it is possible that 
a person born out of the United States might be President. 
The child of American parents born in foreign lands would 
be a natural-born American citizen, but not a native-born 
citizen. 



Sec. 1.] 



THE EXECUTIVE. 



195 



Naturalized citizens who were citizens at the time the Con- 
stitution was adopted were made eligible to the office of Presi- 
dent. But none of that class are now alive, and none have 
ever been elected President. This provision is therefore ob- 
solete. 

II. Age and residence. — 

The President must be at least thirty-five years old. 
He must have resided within the United States at 
least fourteen years. 

This residence need not have been immediately before his 
election, but may have been at any time previously. The 
object of this provision was to prevent any person who had re- 
cently been naturalized from being- elected President, soon af- 
ter the Constitution was adopted. This would also cover the 
case of natural-born citizens who had spent nearly all their 
lives abroad. A sufficient residence is required to make the 
candidate for the Presidency familiar with the institutions of 
the country he aspires to govern. 

III. Qualifications of Vice-President. — 

The Vice-President must have the same qualifications 
as the President, because he may become President. 

IV. A table of qualifications. — The following table will 
aid the student's memory: 



President 

Vice-President 

Senator 

Representative 



Age. 



25 



Citizenship. 



Natural-born citizen . . 
Natural-born citizen . . 
Nine years a citizen. .. 
Seven years a citizen . . 



Residence. 



Fourteen years in the 

United States. 
Fourteen years in the 

United States. 
In the state from 

which chosen. 
In the state from 

which chosen. 



196 CIVIL GOVERNMENT. [Art. II. 

The following- is a table of additional particulars: 



President , 

Vice-President 
•Senator 

Piepresentative 



Term of 
office. 



4 years.. 
4 years.. 
6 years. . 

2 years. . 



How elected. 



By electors 

By electors 

By state legislature 

By the people 



Vacancies, how 
filled. 



By Vice-President. 

Not filled. 

By governor or state 

legislature. 
By the people of the 

district. 



Clause 6. — Vacancies. 

In case of the removal of the President from office, or of his death, 
resignation, or inability to discharge the powers and duties of the 
said office, the same shall devolve on the Vice-President, and the 
Congress may by law provide for the case of removal, death, res- 
ignation or inability, both of the President and Vice-President, 
declaring what officer shall then act as President, and such officer 
shall act accordingly, until the disability be removed, or a Presi- 
dent shall be elected. 

I. Vacancies in the Presidency and Vice-Presi- 
dency. — 

The office of President may become vacant by death, 
by his removal on impeachment, by his resignation, or 
by such disability as insanity or extreme and long-contin- 
ued sickness. It may also be vacant in case of the fail- 
ure of both the Presidential electors and of the House 
of Representatives to elect a President before the fourth 
of March. (Clause 3.) 

The absence of the President from Washington does 
not create a vacancy. Presidents have performed many 
official duties at a distance from the capital. 

When the President is impeached, there is no vacancy, 
WTien Andrew Johnson was impeached, he held his of- 



Sec. 1.] THE EXECUTIVE. 197 

fice, and as the Senate acquitted him, no vacancy oc- 
curred. 

II. Vacancies in the Presidency, how filled. — 

When a vacancy exists, and there is a Vice-President, 
he fills that vacancy, unless he also is incapacitated in 
some way. If the President should be only disabled 
from performing the duties of his office by insanity or 
sickness, the Vice-President would act as President for 
the time being, until the disability cease. But when 
the vacancy is a permanent one, the Vice-President be- 
comes President. Only four vacancies in the office of 
President have occurred, in each case by the death of 
the President, and in each case the Vice-President has 
succeeded to the office of President. 

III. Vacancies in the Vice-Presidency. — 

The office of Vice-President may become vacant by 
his death or resignation, by his removal on impeach- 
ment, or by his promotion to the office of President. 
When a vacancy occurs it is not filled, but the duties of 
the Vice-President as President of the Senate are per- 
formed by the President pro tempore of the Senate. 

IV. Vacancies in both Presidency and Vice- 

Presidency. — 

The Constitution leaves it to Congress to provide for 
the case of a vacancy in the office of both President and 
Vice-President. Congress has provided that in case of 
such double vacancy, the Secretary of State, or in case 
there is no Secretary of State, one of the other Cabinet 



198 CIVIL GOVERNMENT. [Art. II. 

officers in the order of precedence of their department, 
shall act as President until the disability be removed or 
a new President be elected. In that case a special elec- 
tion must be held the next fall, and a President must 
be elected to fill the unexpired term, unless it is the last 
year of the term. This case has never arisen. 

When the Vice-President becomes President on the 
death, removal or resignation of the President, he holds 
the office for the whole of the unexpired term. But if 
the Secretary of State or some other Cabinet officer 
should ever fill a vacancy, he would be only Acting 
President, and he would only hold the office of President 
until a special election could be held. But if the va- 
cancy occur in the last year of the President's term, the 
Acting President holds the office for the remainder of 
the term. 

V. Disputed question. — Would the absence of the President 
from the United States create a vacancy? The case has never 
occurred, and therefore no positive answer can be given. But 
most of the states have provided that the absence of the 
Governor from the state creates a vacancy in the office during 
his absence, and that the Lieutenant-Governor shall act as 
Governor during his absence from the state; and this would 
lead us to suppose that if the case should ever arise, it would 
be decided that the absence of the President from the United 
States creates a temporary vacancy. 

Clause 7.— Salary. 

The President shall, at stated times, receive for his services a com- 
pensation which shaH be neither increased nor diminished during: 
the period for which he shaU have been elected, and he shall not 
receive within that period any other emolument from the United 
States, or any of them. 



Sec. 1.] THE EXECUTIVE. 199 

The salary of the President. — 

The salary of the President was twenty-five thousand 
dollars until 1873, when it was raised to fifty thousand 
dollars. Besides this, the United States has built a house 
called the White House, and keeps it furnished for the 
President's use. He also has special appropriations for 
any special expenses. He is expected to spend full as 
much as he receives. No executive of any country as 
large as this receives nearly so small a salary. 

The salary of the Vice-President was first five thou- 
sand, then eight thousand, then ten thousand, and is 
now eight thousand a year. 

The reason for neither increasing nor diminishing the 
salary of the President during his term, as provided by 
the Constitution, is to make him more independent of 
Congress. This was evaded when President Grant's 
salary was raised for his second term, before his first 
term had ended, but after he had been elected for a sec- 
ond term. 

Clause 8. — Oath of Office. 

Before he enter on the execution of his office, he shall take the 
following: oath or affirmation: "I do solemnly swear (or affirm) 
that I will faithfully execute the office of President of the United 
States, and win to the best of my ability, preserve, protect and 
defend the Constitution of the United States." 

I. The oath of office.— 

The oath of office may be administered to the Presi- 
dent by any judge ; but the practice is to have the Chief 
Justice of the Supreme Court perform this duty. The 



200 CIVIL GOVERNMENT. [Art. II. 

Chief Justice of the Supreme Court is the highest officer 
who can administer an oath, and ranks next to the Presi- 
dent. 

The President's oath of office contains two pledges : 

1. To faithfully execute the office of President of the 
United States. 

2. To the best of his ability to preserve, protect and 
defend the Constitution of the United States. 

The oath is a very simple oath as compared with 
many oaths of office. It embraces only the two most 
essential points. If the President has conscientious 
scruples against taking an oath, he can affirm instead of 
swearing. 

II. Inauguration of the President. — 

The President is inaugurated on the fourth of March, 
at noon. Besides other ceremonies, the oath of office, is 
administered, and the President delivers an inaugural 
address. The fourth of March, 1877, came on Sunday. 
It was a legal question whether the President's term in 
that case ended on the fourth or fifth of March. The 
difficulty was avoided by President Hayes taking the 
oath of office in private on the fourth, and again in con- 
nection with the inaugural ceremonies on the fifth, and 
by President Grant doing no official acts after noon of 
the fourth of March. 

In the four cases when the Vice-President became 
President, he took the oath of office, but there were no 
public inaugural ceremonies. 



Sec. 2.] THE EXECUTIVE. 201 

SECTION II.— POWERS OF THE EXECUTIVE. 
Clause 1. — Some Sole Powers of the President. 

The President shall be Commander-in-Chief of the army and navy 
of the United States, and of the militia of the several states when 
called into the actual service of the United States; he may require 
the opinion, in "writing, of the principal officer in each of the ex- 
ecutive departments, upon any subject relating to the duties of 
their respective offices, and he shall have power to grant re- 
prieves and pardons for offenses against the United States, except 
in cases of impeachment. 

I. The President is Commander-in-Chief. — 

In order to execute the laws of the United States, and 
to protect the nation from invasion or insurrection, it is 
necessary that the President should have charge of a 
military force. In almost all governments the chief ex- 
ecutive officer is commander-in-chief, and in creating a 
chief executive for the United States it was natural and 
necessary that he should have command of the army and 
navy. These forces are subject to the general rules 
made by act of Congress (I, 8, 14), are supported by ap- 
propriations made by Congress (I, 8, 12), and can be 
reduced in number, reorganized or abolished altogether 
by Congress (I, 8, 12). So that the President cannot 
well use these forces for very harmful purposes. 

The military forces under his command are the regular 
army, the regular navy, a volunteer army and navy whenever 
these are authorized by Congress, and the militia of the sev- 
eral states when called into the United States service. All 
these forces are under the command of the President, subject 
to the powers of Congress named above. But the militia of 
any state are under the command of the President only when 



202 CIVIL GOVERNMENT. [Art. II. 

•actually in the service of the United States. Otherwise they 
are under the command of the governors of their respective 
states. 

II. The President need not command in person. — The 
President may command the army in person, or he may put 
one or more military officers in command to carry on military 
operations under his general directions. The latter has al- 
ways been the case. The President has never actually taken 
the field in person; but he has appointed officers to com- 
mand, with certain general instructions, which they were 
to carry out the best they could with the means at their 
command. 

The President has the right to make additional rules for 
the army and navy, so far as they do not conflict with those 
established by law. 

III. Executive departments. — 

This clause by implication provides for executive de- 
partments. These have been established by law, and in- 
creased in number from time to time. These depart- 
ments again are divided into bureaus, each with its of- 
ficers and employes. 

The numbers, titles and compensation of these officers 
-are fixed by law. The principal officers are appointed 
by the President, with the advice and consent of the 
Senate, and can be removed at pleasure. The clerks and 
employes in each department are appointed by the chief 
-of that department, and can be removed at pleasure. 

These departments are all subject to the President, 
and must carry out his orders. The executive power is 
vested in the President, and he is responsible for its 
^exercise. 



Sec. 2.] THE EXECUTIVE. 203 

The names of these executive departments, and the 
titles of the head of each, are given in the following 
table, in the order of their precedence: 

DEPARTMENTS. CHIEFS. 

Department of State Secretary of State. 

Treasury Department Secretary of the Treasury. 

Department of War Secretary of War. 

-Department of the Navy Secretary of the Navy. 

Department of the Interior Secretary of the Interior. 

Post Office Department Postmaster General. 

Department of Justice Attorney General. 

Department of Agriculture Secretary of Agriculture. 

Several of these executive departments existed under 
the Confederation, in one form or another. 

IV. The Cabinet. — President Washing-ton began the prac- 
tice of consulting- the heads of departments, separately or 
together, orally or in writing, about all important matters, 
thus making an informal Cabinet. President Jefferson began 
the practice of holding- regular Cabinet meetings, a practice 
which has been kept up by all Presidents since. This prac- 
tice of holding Cabinet meetings, and of consulting with 
them on all important matters, is not binding on the Pres- 
ident. He can do it or not, as he chooses. But it is so great 
a help to him in the management of his office, that it is not 
likely that any President will ever dispense with it. 

A Cabinet meeting is not so much in the nature of a legisla- 
ture as of a council of war. The President takes the opinions 
of his Cabinet, but he is not bound by them. Still, as they 
are his political friends, and generally his personal friends, 
a wise President is usually guided by them to a great extent. 

The Cabinet meetings are usually secret. The consulta- 
tions are not published. They are therefore much freer than 
they could be if they were public or were to be published. 
The things which the Cabinet advises the President to do are, 



204 CIVIL GOVERNMENT. [Art. II. 

of course, known when he does them, and often are told to 
the public before they are put in action, though sometimes 
they are kept secret for a time. 

V. Reports of heads of departments. — It has become the 
custom for the heads of departments and for the heads of 
important bureaus to prepare full reports to the President, 
which he transmits to Congress with his annual message. 
* The President sometimes calls for written reports or 

opinions at other times. The Attorney General, as the law 
officer of the government, is frequently called upon for an 
opinion in writing as to the lawfulness of certain courses of 
action. The reports or opinions in writing which the Pres- 
ident can require must be upon a subject relating to the 
duties of the Secretary's office. Thus the President would 
call on the Secretary of State for an opinion upon our rela- 
tions with any foreign power, or upon the Secretary of the 
Treasury for an opinion on a financial question, and so on. 

VI. The pardoning power. — 

The experience of the world has shown that in ad- 
ministering justice, mistakes are sometimes made. In- 
nocent persons are sometimes convicted of crimes by mis- 
take, or by false witnesses, and guilty persons are some- 
times sentenced to a punishment more severe than they 
deserve. Sometimes, also, a crime cannot be proved 
against a number of guilty persons, except by the testi- 
mony of one of their number, which testimony will not 
be given unless the witness is assured that he will not 
be punished for his share in the crime. For these rea- 
sons, all governments have allowed a pardoning power, 
and have almost always placed this power in the hands of 
the executive. 

The pardoning power is liable to great abuses. The 



Sec. 2.] THE EXECUTIVE. 205 

executive may refuse to pardon those who deserve to 
be pardoned, or he may encourage crime by pardoning 
great criminals. Our Presidents have been inclined to 
be too easy, rather than too severe, in the exercise of 
this power. 

VII. Extent of the pardoning power. — 1. The President 
may pardon before trial and conviction as well as after. 

2. He may grant a conditional pardon. 

3. He may commute a sentence to one less severe. 

4. He may remit fines, penalties and forfeitures imposed 
under the revenue laws. 

5. He may stop a criminal proceeding carried on in the 
name of the United States, at any stage of the process, and 
order the Attorney General or District Attorney to enter a 
nolle prosequi. Nolle prosequi is a Latin phrase, meaning not 
to wish to prosecute. The effect of entering a nolle prosequi 
is to stop the case and release the accused. But the accused 
may be prosecuted again for the same offense at some future 
time, which would not be the case if he had been acquitted 
by the verdict of a jury. 

6. He can reprieve a condemned person; that is, suspend 
his punishment for a time. This power is rarely used except 
when a person is condemned to death. 

7. He can issue a pardon to take effect at some future time. 

8. His power extends to military as well as civil offenses. 

VIII. Limitations on the pardoning power. — 1. A pardon, 
reprieve or commutation must be accepted by the criminal, 
or it is void. 

2. In cases of impeachment, the President has no official 
power. An impeachment is a political, and not a criminal, 
trial, and is directed against an executive or judicial officer 
for malfeasance in office. Besides, if the President were 
impeached, it would be obviously unfair to allow him to par- 
don himself. Or if an officer appointed by the President was 



206 CIVIL GOVERNMENT. [Art. II. 

impeached for carrying out some ambitions design of the 
President, the President would be tempted to pardon him. 

The President's power to pardon only extends to offenses 
against the United States. When offenses have been com- 
mitted against a state, he has no power to pardon. 

Clause 2. — Powers held Jointly with the Senate. 

He shall have power, by and with the advice and consent of the • 
Senate, to make treaties, provided two- thirds of the Senators 
present concur; and he shall nominate, and by and with the advice - 
and consent of the Senate, shall appoint ambassadors, other pub- 
lic ministers and consuls, judges of the Supreme Court, and all, 
other officers of the United States whose appointments are not 
herein otherwise provided for and which shall be established by 
law; but the Congress may by law vest the appointment for such 
inferior officers as they may think proper in the President alone, '. 
in the courts of law, or in the heads of departments. 

I. The treaty-making power. — 

In monarchies the sovereign or his council have the 
sole power of making treaties and managing all the for- 
eign relations of the government. It is necessary often 
to conduct negotiations with other governments with, 
secrecy and dispatch, which could not be expected if the 
national legislature was to make treaties and manage - 
foreign relations. But as this is a republic, the repre- 
sentatives of the people ought to have some voice in 
matters so important to the national welfare. Both ob- 
jects are gained in our plan of making treaties. The- 
negotiations preliminary to a treaty are conducted by 
the executive, as well as the ordinary correspondence 
with other governments. But no treaty is valid until 
the Senate, by a two-thirds majority, has assented to it.- 



Sec. 2.] THE EXECUTIVE. 20T 

The Senate has several times exercised its right of re* 

jecting a treaty proposed by the President. 

It is still an open question whether the President and Sen- 
ate can make a treaty involving- the payment of money with- 
out the consent of the House of Eepresentatives. The Presi- 
dent and Senate cannot compel the House to vote an appro- 
priation with which to pay any sum promised in the treaty,. 
but they can bind the honor of the nation to fulfill a con- 
tract lawfully made with a foreign power. In such cases the 
House has never refused to vote the appropriation, but has 
done it under protest. The House of Eepresentatives claims 
that it ought not to be expected to vote money for an object 
about which it has not been consulted. The question is stiil 
undecided. 

II. The appointing power. — 

The rule in the United States service is that officers 
shall be appointed, not elected. Most state and county 
officers are now elected by the people; but at the time 
when the Constitution was adopted these officers were 
generally appointed. That is still the case in England. 
This Constitution follows the practice then prevalent. 

It should be remembered that Senators and Repre- 
sentatives are not officers of the United States, but rep- 
resentatives — the Senators of the states, and the Rep- 
resentatives of the people. The only United States of- 
ficers who are elected are President and Vice-President. 
All other officers of the United States are appointed in 
one way or another. 

III. Appointments in concurrence with Senate. 

All the principal appointed officers of the United 



208 CIVIL GOVERNMENT. [Art. II. 

States are appointed by the President with the advice 
and consent of the Senate. For these officers the ap- 
pointment of the President is either a mere nomination, 
or it is a temporary appointment. If the Senate is in 
session, an appointment by the President is only a nomi- 
nation to the Senate. If the Senate refuses to confirm 
the nomination, the officer cannot be commissioned, and 
the President must appoint or nominate some one else, 
until he selects some one whom the Senate is willing to 
confirm. But in the recess of the Senate, the President 
can make a temporary appointment, which will hold 
good till the Senate meets. (See next clause.) 

IV. The action of the Senate. — These appointments are 
considered by the Senate in secret session. They are usually 
referred to a committee, who inquire into them and report on 
some following- day. Appointments by the President are 
often rejected by the Senate. There are only two cases in 
which the Senate is in the habit of confirming' appointments 
at once without referring to a committee. 

1. The President's Cabinet are almost invariably confirmed 
without hesitation, as a mark of courtesy to the President. 
The Cabinet are his advisers, and he ought not to be 
hampered in carrying out the duties of his office by being 
deprived of the men he wishes to have for his advisers, or by 
having men he does not wish forced upon him. 

2. When a Senator, or a person who has been a Senator, is 
named by the President for an office, the Senate is in the 
habit of confirming the nomination at once, as a mark of 
courtesy to a colleague. 

V. Executive sessions of the Senate. — When the Senate 
considers a treaty or an appointment, it goes into an "execu- 
tive session." This is so called because the business then 
transacted is not properly legislative business, but executive 



Sec. 2.] THE EXECUTIVE. 209 

business. These sessions are always secret. No one is al- 
lowed to be present but the members and officers of the Sen- 
ate, and these are all pledged to secrecy in regard to the de- 
bates. The action taken is of course necessarily made public 
at once, except sometimes in case of treaties. But the de- 
bates and votes are kept secret. This is to give greater free- 
dom to Senators in speaking and voting than they would 
have if their action was made public. Appointments are 
confirmed by a simple majority, but treaties require a two- 
thirds majority. 

"VI. Appointments without the concurrence of 
the Senate. — 

The Constitution provides that Congress may by law 
vest the appointment of inferior officers in the President 
alone, in the courts, or in the heads of departments. 

This only applies to those inferior officers whose ap- 
pointment is expressly given by law to one of those three 
powers. In all other cases, no matter how insignificant 
the office, the officer must be appointed by the President 
and Senate concurrently. The object of this is to avoid 
taking up the time of the Senate or of the President 
with the appointment of a multitude of petty officers; 
and also to allow certain officers to be appointed by those 
most interested in them. 

Congress has exercised this right. The chief classes 
of inferior officers who are appointed thus are as fol- 
lows: 

1. All postmasters whose salaries are less than a 

thousand dollars a year are appointed by the Postmaster 

Oeneral. 

u. s. CON.-14. 



210 CIVIL GOVERNMENT. [Art. II. 

2. Most of the clerks, messengers, etc., in the depart- 
ments at Washington are appointed by the Secretary in 
whose department they are. The chiefs of the bureaus 
and a few of the most important officers in each depart- 
ment are appointed by the President with the consent 
of the Senate. 

3. The clerks in the various custom houses are ap- 
pointed by the Chief Collector in each custom house; 
and the clerks and letter carriers in each post office are 
appointed by the postmaster. 

4. The clerks of the United States courts are ap- 
pointed by the courts. In the cases of those inferior 
officers for whose appointment the concurrence of the 
Senate is not needed, it is also not needed for their re- 
moval. The same power which appoints can also re- 
move. 

VII. The tenure of office. — 

This is now in nearly all cases, except judges and 
clerks of courts, and persons in the classified civil service,, 
for four years unless sooner removed. Officers are fre- 
quently removed for political reasons, as well as for 
unfitness. Officers are also frequently reappointed at 
the end of their first term. 

VIII. The classified civil service. — Owing to the abuses 
which came from appointments and removals of inferior of- 
ficers for political reasons which had nothing 1 to do with their 
efficiency, a change has been made in the method of their ap- 
pointment. Nearly all the clerkships in the bureaus at Wash- 
ington, and in the post offices and custom houses are now 



SeC. 2.] THE EXECUTIVE. 211 

in the classified civil service. Appointment is made to these 
places npon examination, promotion is made for merit, and 
removals can only be made for good cause. An opportunity 
is thus given to a young man or woman to get a permanent 
position under the government if he can show ability and 
efficiency, and the government has clerks selected for their 
intelligence and business capacity. 

IX. Removals. — 

The power to appoint, when unlimited, implies the 
power to remove. The question was settled in "Washing- 
ton's administration, that the President can remove all 
officers whom he can appoint, except judges, who hold 
for life. But no officer in the military or naval service 
of the United States can be dismissed from service in 
time of peace, except on the sentence of a court martial. 

The President can suspend a civil officer until the 
close of the next session of the Senate, and make a tem- 
porary appointment in his place. (Clause 3.) If the 
Senate before the close of its session does not confirm the 
person or persons whom the President nominates for the 
vacancy, the old officer comes back again. But it should 
be noted that the President, if he is obstinate, can sus- 
pend him again and make another temporary appoint- 
ment, and so on, till the Senate yields. 

Clause 3. — The Power to Appoint Temporarily. 

The President shall have power to fill np aU vacancies that may- 
happen during the recess of the Senate, hy granting commissions- 
which shall expire at the end of their next session. 

Temporary appointments. — 

The Constitution provides that appointments to office 



212 CIVIL GOVERNMENT. [Art. II. 

(except some inferior ones) shall be by the joint action 
of the President and Senate. But the Senate is not al- 
ways in session, and vacancies may occur when the Sen- 
ate is not in session. The Constitution provides that in 
such cases the President alone may make an appoint- 
ment to fill the vacancy. The officer so appointed holds 
only till the close of the next session of the Senate. 

"When a vacancy occurs during the recess of the Sen- 
ate, the President may (1) leave the office vacant till the 
Senate meets, or (2) make a temporary appointment. In 
many cases he is obliged to do the latter, because the 
office must have some one in it, so that public business 
may go on. In other cases, it is better to wait till the 
:Senate meets, and thus be sure that the President's 
choice meets with the approval of the Senate. This is 
the case with judges, and with officers of the army and 
navy in time of peace. 

Vacancies may be caused by death, by resignation, or 
by removal. The President can make a vacancy in an 
office by removing the officer holding it, and then fill the 
vacancy with some one he prefers. This, of course, can 
only be done in those offices over which he has the power 
of removal. 

If a vacancy occurs in a life office, such as a judge or 
officer of the army or navy, any appointment made by 
the President in the recess of the Senate could only be 
till the close of the next session of the Senate, and not 
for life. To make it for life, the Senate must confirm 
the appointment. 



Sec. 3.] THE EXECUTIVE. 213 



SECTION III.— OTHER SOLE POWERS OF THE 
PRESIDENT. 

He shall from time to time give to the Congress information of the 
state of the Union, and recommend to their consideration snch 
measures as he shall judge necessary and expedient; he may on 
extraordinary occasions, convene both houses or either of them, 
and in case of disagreement between them, with respect to the 
time of adjournment, he may adjourn them to such time as he 
shall think proper; he shall receive ambassadors and other public 
ministers; he shall take care that the laws be faithfully executed, 
and shall commission all of the officers of the United States. 

I. The President's message. — 

The President sends to Congress at the beginning of 
each regular session a message which contains : 

1. A general account of the doings of the executive 
during the year. 

2. A summary of the reports of departments, which 
reports are published separately. 

3. Suggestions and recommendations as to legislation 
needed. 

The President also sends special , messages whenever 
there is occasion for them, to give information or to 
make recommendations. 

Washington and Adams followed the custom of the 
sovereigns of England, by going in person to deliver 
their messages, and by receiving a reply from each 
house; but Jefferson sent a written message, and did not 
expect a reply. This usage has been followed since. 

Congress does not always follow the recommendations 
of the President. 



214 CIVIL GOVERNMENT. [Art. II. 

II. The power to convene Congress.— 

Congress meets regularly on the first Monday in De- 
cember, and remains in session in the odd years until 
the fourth of March, and generally much longer in the 
even years. This is enough for all ordinary legislation. 
But occasionally there will come an extraordinary occa- 
sion when legislation is needed on some subject which 
cannot be put off till the regular session. Presidents 
have used their power to convene Congress in special 
session only a few times. These occasions were all ex- 
traordinary. 

The President has frequently convened the Senate at the 
close of a regular session of Congress to consider appoint- 
ments. 

The President can only convene Congress at the capitol, if 
the capitol can be used. If the capitol should be captured 
by enemies, or a great pestilence or fire should make it un- 
inhabitable, it would probably be in the power of the Presi- 
dent to convene Congress at some other place, either at a 
regular or special session. But the case has never arisen 
since the Constitution was adopted. 

When Congress is convened in special session, it is not con- 
fined to any special time. It can sit as long or as short a 
time as it pleases. Nor is it confined to any class of subjects. 
The President calls it together for special reasons, which he 
names in his proclamation or in his special message; but Con- 
gress is at liberty to consider any other subject, and gener- 
ally takes that liberty. A special session only differs from a 
regular session in beginning at a different time. 

After a Congress has once met and organized, it can adjourn 
to any future time, and thus make special sessions without 
any call of the President. But before a Congress has met, 
or if it has adjourned without determining on a special ses- 



Sec. 3„] THE EXECUTIVE. 215 

sion, it can only meet before the time of the next regular ses- 
sion by a call of the President. 

III. The power to adjourn Congress. — 

When the Senate and House of Representatives can- 
not agree as to the time of adjournment, the President 
may adjourn them to such time as he thinks proper. 
This cannot be construed to mean that he can adjourn 
them any longer than till the time for the next regular 
session, as that is fixed by law. 

The case has never arisen in which both houses have dis- 
agreed as to the time of adjournment, and the President has 
never been called on to exercise this power. But the case 
might well arise when the value of this provision would be 
seen. 

In England the sovereign can porogue, that is adjourn, Par- 
liament at any time, and can even dissolve Parliament and 
order a new election. A Parliament in England never ad- 
journs itself, but is always porogued by the sovereign when 
it has finished its work; and a Parliament rarely sits the full 
seven years for which it is elected without a dissolution. 

IV. Reception of ambassadors. — 

To receive an ambassador or other public minister is 
to formally recognize him as an ambassador. A foreign 
minister must present his credentials to the President at 
a formal audience, and be received, before he can per- 
form any public act. The same thing is done by our 
ambassadors abroad. 

The power to receive implies the power to 'refuse to 
receive, and the power to dismiss. The executive of 
any country may refuse to receive or may dismiss the 



216 CIVIL GOVERNMENT. [Art. II. 

ambassador of another country on one of the following 
grounds : 

1. If the nation he represents has not yet been rec- 
ognized as a nation by the government to which he is 
accredited. 

2. Often when the country he represents and the 
country to which he is accredited have a very serious 
quarre^ and always when they are at war. 

3. When the ambassador is personally objectionable 
to the government to which he is accredited. In that 
case some other person will be sent in his place. 

The act of receiving ambassadors is to nations what 
it is to individuals to be on calling terms, or on speak- 
ing terms, except that it is done by agents instead of in 
person. 

This power of the President is one of great responsibility 
at times. When in consequence of civil war there are two 
rival governments in a foreign nation, the question which 
government we shall recognize is decided by the President, 
and this recognition might even sometimes involve us in war 
with the side which we did not recognize. Or if the Presi- 
dent should dismiss the ambassador of some other country 
on account of a difference with that government, it might 
easily lead us into a war. We are favored by Providence 
by having the Atlantic between us and any formidable foe, 
so that the mistakes of our President are not so dangerous to 
us as they would be in another situation. We have also been 
fortunate in having Presidents who, with the advice of their 
Cabinets, have managed our foreign relations discreetly, 
whatever may be said of their home policy. 

V. Execution of the laws. — 

This is the most important duty of the President, and 



Sec. 3.] THE EXECUTIVE. 21T 

of the executive officers under his direction. The Pres- 
ident does not make or repeal the laws (except so far 
as his veto power extends). If he thinks a law a bad 
one, it is nevertheless his duty to enforce it until it is 
repealed. He can recommend its repeal by Congress, 
but he must enforce it until it is repealed. 

If the President or any officer should enforce that as law 
which is not law, or should go beyond his powers or duties as- 
given in the Constitution and statutes, anyone aggrieved by 
such action has a remedy in the courts, by some of the vari* 
ous writs used by the courts, and by a suit for damages, if 
any damages have been sustained. The President and all 
his subordinate officers are thus subject to the laws. They 
do not make the laws; Congress does that. They do not in- 
terpret the laws; the courts do that. But it is their duty 
to enforce the laws, and to enforce them in lawful ways. 

If anyone violates the law, he can be arrested and tried, 
and punished. If anyone refuse to obey the law, the execu- 
tive officers can compel him to obey it, either by citing him 
before the courts for trial and punishment, or, if necessary, 
by armed force. 

The President cannot himself do all the work of enforcing- 
the laws, but he can take care that the laws are faithfully 
executed. He frequently instructs the district attorneys and 1 
marshals as to suits or criminal cases in the courts, by which 
violations of law are punished. All executive officers of the 
United States act under his direction, and must obey his 
orders, or risk being removed from office. Thus he has ample- 
power to see that the laws are enforced. 

VI. Commissioning officers. — 

When an officer is appointed, he receives a commis- 
sion, signed by the President and certified by the great 
seal, which is affixed by the Secretary of State. An of- 



218 CIVIL GOVERNMENT. [Art. II. 

fleer's term of office begins when the President signs his 
commission, whether the officer receives it or not. The 
following things are necessary to holding any office to 
which the President can appoint with the advice and 
consent of the Senate: 

1. The President must nominate. 

2. The Senate must confirm (except during their re- 
cess). 

3. The President must commission. 

4. The person appointed must accept. 

Other officers only require to be appointed by the 
proper authority and to accept the appointment. 

Under this clause the President might be required 
by law to commission officers appointed by the courts 
or by heads of departments, but this has not been re- 
quired as yet by law. 



SECTION IV.— IMPEACHMENT. 

The President, Vice-President, and aU civil officers of the United 
States, shall be removed from office on impeachment for, and 
conviction of treason, bribery, or other high crimes and misde- 
meanors. 

I. Who can be impeached. — 

Only civil officers of the United States can be im- 
peached. Military and naval officers are not civil offi- 
cers, and cannot be impeached; but they can be tried by 
■court martial. 

Senators and Representatives are not officers, but rep- 
resentatives of the states or the people; they can be ex- 



Sec. 4.] THE EXECUTIVE. 219 

pelled by the house to which they belong; but they can- 
not be removed by impeachment. 

Judicial and executive officers (except military or na- 
val) are civil officers within the meaning of this section, 
and can be removed from office by impeachment and 
•conviction. Any officer who can be removed by the 
President or by other authority would usually be re- 
moved in this way, if he deserved it, rather than to wait 
for the slow process of an impeachment trial. 

II. For what can officers be impeached? — 

Not for their private conduct, but only for their offi- 
cial acts. For instance, an officer could not be im- 
peached for drunkenness, unless it rendered him unfit to 
perform the duties of his office. The Constitution speci- 
fies three causes for impeachment: 

1. Treason. As this is defined elsewhere in the Con- 
stitution, it consists in "levying war against the United 
States, or in adhering to their enemies, giving them aid 
and comfort." 

2. Bribery — that is, receiving money or its equivalent 
for using their office to the advantage of some one. For 
instance, if a judge should take a present for deciding 
for one party to a suit rather than the other, that would 
be bribery. Or if a revenue officer should take money 
from an importer to let his goods pass the custom house 
with less than the legal duty, that would be bribery. 

3. Other high crimes and misdemeanors. What 
cthese are is not defined, nor was it meant to be. Cases 



220 



CIVIL GOVERNMENT. 



[Art. II. 



will sometimes arise which cannot be included under 
any law previously enacted, and the Senate must exer- 
cise its own discretion as to what constitutes these high 
crimes and misdemeanors. It will be guided, however, 
largely by the precedents already made in impeachment 
trials in this country and England. (See comments on 
I, 2, 5, and I, 3, 6 and 7, for the action of the House of 
Representatives in impeaching and of the Senate in try- 
ing impeachments.) 

III. A table of impeachment trials. — 

The following is a table of impeachment trials before 
the United States Senate. This table, of course, does 
not include impeachment trials in the several states, of 
which there have been several. 



When. 



Whom. 



Why. 

Intrigues with Indian 
tribes 

Intemperance and In- 
sanity 

Partiality and Injus- 
tice 

Abuse of Judicial 
Power 

Treason 

Violation of Tenure 

of Office Act 

Accepting Bribes 



Result. 



1798.... 


Senator Blount — 


1803.... 


Judge Pickering. .. 


1804.... 


Judge Chase 


1830.... 


Judge Peck 


1862.... 


Judge Humphries. 


1868.... 


President Johnson. 


1876.... 


Secretary Belknap. 



Case dismissed for want 

of jurisdiction. 
Removed . 

Acquitted. 

Acquitted. 

Removed and disquali- 
fied. 

Acquitted by one vote. 
Acquitted. 



Appendix.] the executive. 221 



APPENDIX TO PART IV. 

The state executives. — 

The executive power in the state governments is 
vested in an officer who is called Governor. This name 
comes down from the old colonial days, when it was the 
title of the chief executive in each colony. During and 
soon after the Revolutionary War several states changed 
this title to that of President. But all now call their 
chief executive Governor. The next in rank is called 
Lieutenant-Governor, which was also a colonial title. 

The Governor and Lieutenant-Governor can be com- 
pared with the President and the Vice-President in re- 
spect to their powers and duties, but not in the manner 
of their election. 

In the colonies the Governor had been appointed, ex- 
cept in the charter colonies, where he was elected by the 
people. The early Revolutionary governments gener- 
ally had the Governor elected by the legislature. This 
lasted in Virginia till 1832, and in South Carolina till 
after the Civil War. But the democratic movement 
which began with Jefferson and culminated with Jack- 
son led to the states one by one, changing their consti- 
tutions in this and other respects. The Governor and 
Lieutenant-Governor in every state are now elected by 
the people. The only relics of the old practice left are 
that in some New England states, if no candidate has a 
majority of all the votes cast, the legislature proceeds 



222 CIVIL GOVERNMENT. [Art. II. 

to elect one of the two highest candidates, and that in 
many states the legislature canvasses the returns for 
Governor and declares which candidate is elected. 

The Lieutenant-Governor presides over the Senate and 
also acts as Governor during the temporary or perma- 
nent inability of the Governor to act. The most fre- 
quent cause of such inability is the absence of the Gov- 
ernor from the state, when the Lieutenant-Governor acts 
as Governor. 

The heads of administrative departments in the early 
state governments were generally elected by the legis- 
lature. In some cases one or more of these is still so 
elected. But the general rule is now that the state offi- 
cers shall be elected by the people. The administrative 
departments are thus made independent of the chief ex- 
ecutive, contrary to the practice in the United States 
government. The elective state officers include in 
nearly every state a Secretary of State, a State Treas- 
urer, and an Attorney General. Many states have such 
state officers as State Auditor, Superintendent of Public 
Instruction and Railroad Commissioner. It is very 
usual in addition to the chief administrative officers 
elected by the people to have several other administra- 
tive officers and boards appointed by the Governor and 
confirmed by the Senate. The variety of these is so 
great and the changes in them so frequent that a list 
of them cannot well be given here. And for practical 
purposes all that is necessary is to know your own state 
government. All the information needed for this pur- 



Appendix.] the executive. 223 

pose can be obtained from the statutes of the state or 
in most states from the legislative manual. 



WORK FOR THE STUDENT. 
[See State Constitution and. Statutes.] 

1. For what term is the governor of your state elected? 

2. When does the election occur? How are the votes can- 
vassed, and the result declared? 

3. What qualifications are required of voters? 

4. What additional qualifications are required of the gov- 
ernor, if any? 

5. When does his term of office begin? 

6. What salary is paid the governor? Is that fixed by the 
Constitution? 

7. Is there any limitation upon re-electing a governor? If 
so, what is it? 

8. Is it the practice in your state to re-elect a governor for 
one additional term? Have any governors in your state 
served longer than two terms? 

9. What oath of office is prescribed in your state Constitu- 
tion? How does it differ from that in the United States Con- 
stitution ? 

10. What are the powers and duties of the governor of your 
state? How do they differ from those of the President of the 
United States? 

11. In what particulars does the impeachment of a governor 
in your state differ from that of a President of the United 
States? 

12. How is a vacancy created in the office of governor? 

13. How is the vacancy filled, in case there is also a vacancy 
in the office of lieutenant governor? 

14. What are the powers and duties of the lieutenant gov- 
ernor, and his salary? 



l224 CIVIL GOVERNMENT. [Art. II. 

15. Make a list of the elective state officers with term of 
office and salary of each. 

16. Make a similar list of the appointed state officers. 

17. Make a list of all the state boards with number of mem- 
'bers, how appointed, term of office, and compensation of each. 

18. State the principal powers and duties of each of these 
•officers and boards. 



NOMINATION OF PKESIDENT. 

The change in method of nomination. — During- the first 
-half-century of the Constitution, candidates for President and 
Vice-President were usually put in nomination by caucuses 
•of members of Congress of the respective parties, for whom 
the electors were expected to vote. The electors at that time 
were mostly chosen by the state legislatures. The democratic 
movement led by Jackson was opposed to both these methods, 
-as being survivals of the aristocratic methods of English 
politics handed down fronl colonial times. Jackson himself 
was first nominated for President by a number of state leg- 
islatures in which his party had a majority. But a more dem- 
ocratic method of party organization was soon adopted in the 
form of conventions national, state, and local. This has now 
been the regular method of the party organization of ail 
parties for more than two generations. The first party con- 
tentions were held in 1831 and 1832. The recent laws provid- 
ing for the Australian ballot system, in a large number of 
states, have recognized the convention method of party gov- 
ernment for all offices, while providing also for independent 
nominations. 

The call for the convention. — The call for the convention is 
Issued by the national committee of the party, who are called 
together for that purpose by their chairman, usually after 
-consultation with the executive committee. The call specifies 
;the time and place of the convention, and the number of 



Appendix.] the executive. 225 

delegates to which each state and territory and the District 
of Columbia is entitled. The basis of representation has been 
previously settled for the committee either by party usage or 
by an express vote in the last previous national convention. 
This basis of representation might be an equal number to 
each state, but this method has rarely been followed. Or it 
may be a number in proportion to the Presidential electors to 
which each state is entitled, that is to the Senators and Eep- 
resentatives. On this plan, which has been quite largely fol- 
lowed, each state generally has twice as many delegates as it 
has Presidential electors, and each territory and the District 
of Columbia has two delegates. This plan is the usual one, 
and has the merit of simplicity and of being in proportion 
to the electoral vote, except as to the territories and the Dis- 
trict of Columbia. The objection to it is that states whose 
electoral votes will not be given to the party have an equal 
vote in deciding the nomination with those states which are 
sure for the party and those which are doubtful, and that 
territories which have no electoral vote, yet have votes in 
the nomination, so that a candidate may be nominated by the 
votes of states and territories which cannot elect him, against 
the wish of the states which furnish the votes for the party. 
A third plan has therefore been strongly urged, and has been 
adopted by the Populist party, to. give each state a vote ac- 
cording to the popular vote for the party candidates for Pres- 
idential electors at the last election. This gives the party in 
each state representation according to its own numbers, and 
not according to the total population. 

The call is sent to each state and territorial committee, and 
these committees then call state and territorial conventions, 
giving the time and place, and the number of delegates each 
county is entitled to. There are two ways of selecting the 
delegates to the national convention: either the state conven- 
tion selects them all, which is necessarily the case in small 
states consisting of only one Congressional district, or a part 
of the delegates are elected by the state convention and a 
part by Congressional district conventions. Supposing 
U. S. CON.-15. 



226 CIVIL GOVERNMENT. [Art. II. 

that the state has ten Kepresentatives in Congress, and, of 
course, two Senators, and that there are twice as many del- 
egates to the national convention as there are Presidential 
electors: there would be four delegates at large to be elected 
by the state convention, and twenty district delegates, two 
to be elected by each district convention; and this would be 
so specified in the call by the state committee, who 
"would call the state convention and arrange with 
the Congressional and district committees to call the 
district conventions. The selection of party candidates for 
Presidential electors follows the same course. They may be 
selected by the state Convention, or they may be selected 
one by each district convention and two by the state conven- 
tion. The call will specify this. The county committees will call 
county conventions, giving the number of delegates to whicii 
each town, village, and ward of a city is entitled, and the 
town, village and ward committees will call caucuses or pri- 
mary elections, as the case may be. Meanwhile all this will 
have been published in all the leading papers as news, and 
the calls will be printed in many party newspapers, thus 
giving due notice. 

The preliminary caucuses and conventions. — The caucuses 
for the primary elections and the county conventions are 
held as already described. Where district conventions are 
called, they are also held, and if possible before the state 
convention. 

Each state convention is composed of quite a large number 
of delegates, most of whom arrive one or two days in ad- 
vance. Usually the state committee ■ acts on the credentials of 
all delegates before the convention meets and makes out a 
roll of members. Sometimes, however, this is wholly left to 
the Committee on Credentials after the convention is as- 
sembled. In case of a contest, there is always an opportunity 
for an appeal from any decision of the state committee to a 
committee of the convention, and then to the convention 
itself. If the state convention chooses all the delegates to the 
national convention, there are caucuses held of the members 



Appendix.] the executive. 227 

of the state convention from each Congressional district to 
recommend delegates and candidates for Presidential elec- 
tors to the state convention, and such recommendations are 
almost always followed. Each of these caucuses is thus vir- 
tually a district convention. In any case district caucuses are 
held to agree on members of the various committees of the 
convention. 

At the appointed hour the convention is called to order by 
the chairman of the state committee. In some cases he names 
the temporary chairman of the convention, and in some cases 
such chairman is voted for by the convention. The tem- 
porary chairman generally knows beforehand that he is to be 
selected, and is prepared with a speech for the occasion on 
the issues of the day. This speech is often a sort of plat- 
form for the party. He then appoints the Committees on 
Permanent Organization, on Credentials, and on Eesolutions, 
as they have been arranged for, and a recess is then taken for 
several hours to allow the committees to meet. At the next 
session the Committee on Permanent Organization reports a 
list of officers, who are almost always elected. The election 
of delegates to the national convention then begins. There 
is often an exciting contest, especially over the delegates at 
large. Such delegates to the national convention and candi- 
dates for Presidential electors as have been chosen by district 
conventions are reported and all others are elected so as to 
make a complete list for the state. The Committee on Res- 
olutions then reports a platform of principles, which is gen- 
erally adopted without amendment, because the real contest 
over the platform, if there is one, has already been fought out 
in the committee. 

The national convention. — The national convention is 
larger than any state convention, and is attended by throngs 
of visitors who go out of curiosity or to help their favorite 
candidates. It is necessarily held in a great city, for no small 
city could accommodate the crowds or provide a building 
large enough. Indeed, a special building is often put up for 
use of the convention, because no hall in the city will hold 



228 CIVIL GOVERNMENT. [Art. II. 

the convention itself with even a small part of those who 
wish to look on. Delegates and visitors arrive days before- 
hand. Each state delegation has its headquarters, and each 
candidate has rooms open to all comers. For months the 
party newspapers have been discussing the candidates for the 
nomination, and the state delegates have been chosen largely 
with a view to their voting for one or another candidate. The 
organization of a national convention proceeds similarly to 
that of a state convention. A temporary chairman and tem- 
porary secretaries are chosen and committees are appointed. 
These committees usually consist each of one member from 
each state and territory, who is named by the delegation from 
that state or territory. All contests not previously settled by 
the national committee are referred to the Committee on Cre- 
dentials. Then the Committee on Permanent Organization 
reports a permanent chairman and other officers, who are 
almost invariably elected by the convention. All contests are 
decided by the convention upon the report of the Committee 
on Credentials. Then names are presented of candidates for 
the nomination for President and speeches made in favor of 
each. The candidate is chosen by ballot. The ordinary 
method is to call the roll of states and territories, generally 
in alphabetical order, and the chairman of each delegation 
announces the vote of his delegation, the ballots having been 
cast and counted in each delegation by its own officers. For 
many years it was the custom in all parties that the vote of 
each state should be cast as a unit, according to the will of 
the majority of delegates from that state. But in the Kepub- 
lican party now it is the rule that the number of votes cast 
for each candidate in each state shall be announced and shall 
be separately counted in the aggregate result. Voting by 
states thus becomes only a method of balloting quickly, in- 
stead of a method of suppressing the votes of a minority in a 
state delegation. In case the vote is reported incorrectly, 
any delegate from the state has the privilege of challenging 
the vote of his state as announced and demanding a poll of 
the delegation. In this way the votes of a state delegation 



'Appendix.] the executive. 229 

may be scattered among- several candidates, instead of being 
all given to the candidate who has the majority in the state 
delegation. For many years the Democratic party has had 
a rule for its national conventions that a two-thirds majority 
is required to nominate. This rule has prevented some men 
from securing the nomination, and the consequent election to 
the Presidency, who would otherwise have obtained it; but 
it prevents a bare majority nominating, perhaps not really 
representing a majority of the party, and perhaps under the 
unit rule not even a majority of the delegates. In other 
parties a majority is enough to nominate. Frequently many 
ballots are necessary, and the excitement is intense not only 
in the convention, but all over the country. 

The candidate for Vice-President is then nominated, gen- 
erally without much difficulty. The Committee on Resolu- 
tions then reports a platform of principles. Sometimes there 
is a great difference of opinion inside the party on some of 
these questions, and there is a serious contest over the plat- 
form, but usually all differences have been fought out in the 
Committee on Eesolutions. 

All this keeps the convention in session several days, per- 
haps even a week. The importance of the nomination and of the 
platform makes each of the great party conventions a center 
of interest to all the other parties as well as to its own 
members. 



fa*t tf. 



Organisation of tbe Jufciciarg. 



Law is the deep, august foundation, whereon peace and jus~ 

tice rest. 
On the rock primeval, hidden in the past its bases be, 
Bloek by block the endeavoring ages built it up to what 

we see. — James Russell Lowell. 

"The Federal Court is the unique creation of the founders 
of the Constitution. The success of this experiment has 
blinded men to its novelty. There is no exact precedent for it 
either in the ancient or the modern wond." — Sir Henri* 
Maine. 

"The usual remedies between nations, war and diplomacy, 
being precluded by the Federal Union, it is necessary that a 
judicial remedy should supply its place. The Supreme Court 
of the Federation dispenses international law, and is the first 
great example of what is one of the most prominent events 
of civilized society, a real international tribunal." — John 
Stuart Mill. 



Sec. 1.] THE JUDICIARY. 233 



ARTICLE III. 

SECTION I. 

The judicial power of the United States shall be Tested in one 
Supreme Court, and in such inferior courts as the Congress may 
from time to time ordain and establish. The judges both of the 
Supreme and inferior courts, shall hold their offices during good 
behavior, and shall at stated times receive for their services a 
compensation which shall not be diminished during their contin- 
uance in office. 

I. The judicial department defines and applies 
the law. — 

The third department of the government is the judi- 
cial department. As the legislative department makes 
the laws, and the executive department enforces them, 
so the judicial department applies and interprets the 
laws. It is the business of the judicial department, in 
any cases brought before it, to decide whether the law 
applies to those cases, and how far it applies to them. 

Thus if a* crime is committed, the criminal ought to 
be punished. But in doing this, each department of the 
government has its share. The legislative department 
has already made a law forbidding that crime, and affix- 
ing certain penalties for committing it; an executive of- 
ficer arrests the criminal on a warrant issued by a 
judicial officer; after certain preliminaries, the accused is 
tried before a judge and jury, who are judicial officers. 
The question is, whether the accused is guilty of the 
crime charged, and whether that is a violation of law; 



"234: CIVIL GOVERNMENT. [Art. Ill 

"that is, whether the law with its penalties applies to this 
particular case. If it is proved that it does, then the 
criminal is handed over to some executive officer to be 
punished. Now although it is the business of the ex- 
ecutive department of the government to enforce the 
law, no executive officer has a right to punish a criminal 
until he has been found guilty of some violation of law; 
that is, until the judicial department has decided that 
the law applies to this particular case. 

So with civil suits. It is the business of the judicial 
department to decide, upon the proof shown in any case, 
Tiow far the laws apply to the dispute between the par- 
ties to the suit. When that is decided, it is the duty of 
^ome executive officer to carry out the law as it has been 
applied to this case by the courts. 

In thus applying the law to particular cases, it often 
"becomes necessary to know just what the law is. Either 
i:he law is not worded clearly, or two laws conflict. It 
i;hen becomes the duty of the courts to decide what the 
law really means, or which of the two laws is really law 
^and which is not. In such cases the judicial depart- 
ment defines and interprets the law. 

II. The constitutionality of laws. — 

Here comes in the power of the courts to decide the 

•constitutionality of laws. The highest law is the United 

States Constitution, and all United States and state laws 

must conform to it. If they conflict with it, they are 

jiull and void, and are no laws. If in any case which 



Sec. 1.] THE JUDICIARY. 235 

comes before the courts a law or a part of a law is found 
to be in conflict with this Constitution, the courts decide 
that the law is unconstitutional, and therefore void. 
Such a decision by any court is entitled to respect unless 
the decision is reversed by a higher court. But when 
such a decision is made by the Supreme Court of the 
United States court, the highest of the land, it is re- 
garded as settling the question that the law is uncon- 
stitutional. 

It is a mistake to suppose that the Supreme Court is 
constantly deciding constitutional questions, and that 
all constitutional questions come at once before that 
court. Nothing comes before any court except in con- 
nection with an actual suit or trial. An unconstitu- 
tional law may stand for years before a case under it is 
carried up to the Supreme Court. Some things from 
their nature cannot be taken into court. And the courts 
always hesitate to decide a law to be unconstitutional, 
and only do so when the case is plain. 

III. In what courts the judicial power is vested. 

The judicial power of the United States is vested in 
one Supreme Court, and in such other courts as Con- 
gress may establish. 

The number and manner of organization of the courts 
have been changed from time to time, and are now as 
follows : 

1. The Supreme Court of the United States, com- 
posed of one Chief Justice and eight Associate Justices. 



236 CIVIL government. [Art. III. 

2. Circuit Courts of Appeals, uine in all, each com- 
posed of the Justice of the Supreme Court assigned to 
that circuit and the Circuit Judges of that circuit. In 
the absence of either of these, his place may be nlled. 
by a District Judge from some district within the cir- 
cuit. Most cases can only be appealed from a District 
Court to a Circuit Court of Appeals. Only a few im- 
portant classes of cases can be carried up to the Supreme- 
Court. 

3. United States Circuit Courts, nine in all, each com- 
posed of one Justice of the Supreme Court, one Circuit. 
Judge, and one District Judge. 

4. United States District Courts, each composed of 
one District Judge. At least one of these District. 
Courts is located in each state, and in the larger "states 
more than one. 

Special Courts. — 1. The Supreme Court of the Dis- 
trict of Columbia, composed of a Chief Justice and four 
Associate Justices. Any one of these may hold a Dis- 
trict Court for the District of Columbia with the same 
jurisdiction as other District Courts of the United States. 

2. The Court of Claims, composed of a Chief Justice 
and four Associate Justices. 

3. Territorial Courts. These are only United States - 
courts in the sense in which territorial governors and 
other officers are United States officers. They are of- 
ficers of the territory, appointed by the United States,.. 
while the infant state is still under guardianship, and' 
give place to state officers as soon as the state is admitted- 



Sec. 1.] THE JUDICIARY. 237 

Territorial judges are not appointed for life, but for four 
years, unless sooner removed or unless the state is sooner 
.admitted to the Union. 

IV. Officers of the courts. — 

These courts, besides the judges, have the following 
•officers : 

1. Each court has a clerk, appointed by the court, 
-and removable by it, who keeps all the records of the 
•court, and prepares all documents issued by the court. 

2. Each District Court has a marshal, who is the ex- 
ecutive officer of the court, with the same powers as 
those exercised by sheriffs. He is appointed by the 
President, with the consent of the Senate, and is marshal 
for the Circuit Court whenever it sits in his district. 

3. The Supreme Court and the Circuit Courts of Ap- 
peals have marshals appointed by the courts, and the 

Court of Claims has a bailiff, with the same duties as a 
marshal. 

4. Each District Court has a district attorney, who 
Tepresents the United States in the prosecution of all 
criminal cases, and is the lawyer for the United States 
in all civil suits to which the United States is a party. 
"The district attorney is appointed by the President, with 
-the consent of the Senate, and acts as United States at- 
torney also in the Circuit Court, when held in his dis- 
trict. In the Supreme Court, the Attorney General of 
the United States, or one of his assistants, acts as United 
States attorney. 



238 CIVIL government. [Art. III. 

5. The Supreme Court has also a reporter, appointed 
by the Supreme Court, who prepares and publishes the 
official reports of all cases brought before it. The re- 
ports now fill many volumes. 

V. Term of office of judges. — 

The term of office of all United States judges is- 
for life, or during good behavior. As the only legal 
way of determining that a judge has not behaved well 
is by impeachment, this practically means that United 
States judges hold office for life unless removed upon im- 
peachment. Only two judges have thus been removed. 
A judge may, however, resign; and if he has served ten 
years, and is seventy years old, he will be paid his full 
salary for the remainder of his life. 

The object of making judges hold office for life, is to 
make them independent in their decisions. A judge 
ought not to be influenced in his decisions by the fear 
of removal from office, or by the hope of reappointment 
or re-election. 

VI. Salary of judges. — 

The amount of the salaries of judges is left to Con- 
gress. But the Constitution provides that their salaries 
shall not be diminished. They may, however, be in- 
creased. The object of this is to make the judges in- 
dependent of Congress. 

If it ever should be thought best to decrease the sal- 
aries of the judges, or of any class of them, it could be 
done in regard to all judges thereafter to be appointed^ 



Sec. 2.] THE JUDICIARY. 239" 

but the salaries of those then in office would not be 
changed. But Congress can raise the salary of all- 
judges at any time, and has done so several times. 



SECTION II.— JURISDICTION OF THE COURTS. 
Clause 1. — Extent oe Jurisdiction. 

The judicial power shall extend to all cases in law and equity aris- 
ing under this Constitution, the laws of the United States and 
treaties made, or Avhich shall be made, under their authority; to 
aU cases affecting ambassadors, other public ministers, and con- 
suls; to all cases of admiralty and maritime jurisdiction; to con- 
troversies to which the United States shall be a party; to contro- 
versies between two or more states; between a state and citizens 
of another state; between citizens of different states; between 
citizens of the same state claiming lands under grants of different. 
states, and between a state or the citizens thereof, and foreign 
states, citizens or subjects. 

This clause has been modified by the eleventh amendment,, 
which reads as follows: 

The judicial power of the United States shall not be construed to- 
extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by citizens of another state, or- 
by citizens or subjects of any foreign state. 

I. Two classes of cases. — 

The Supreme Court has said : "Jurisdiction is given to 
the courts of the United States in two classes of cases. 
In the first class their jurisdiction depends upon the 
CHARACTER OF THE CAUSE, whoever may be the 
parties. This class comprehends 'all cases in law and 
equity arising/ etc. ; in the second class the jurisdiction 
depends entirely upon the character of the parties. In 
this class are comprehended 'controversies between/ etc. 



240 CIVIL GOVERNMENT. [Art. III. 

If these be the parties, it is entirely unimportant what 
may be the subjects of the controversy." 

II. Cases in law and equity. — 

A case is an alleged state of facts, brought before a 
court in a legal way by some one who is aggrieved there- 
by. The courts can only act on cases. They cannot 
decide on legal questions, except as they are brought be- 
fore them in actual cases, either as criminal trials or civil 
suits. Thus a legal question may be disputed a long 
time before it is settled by a judicial decision, because no 
case has been brought before the courts which involves 
that question. 

There are questions in regard to the meaning of some 
clauses of the Constitution which have never been de- 
cided, because no case has arisen which brought them 
before the courts. 

These words, "cases in law and equity," refer to distinc- 
tions made by English law, from, which our law is derived. 
When the Constitution was adopted, there were four classes 
of courts in England, each having its own officers, its own meth- 
ods of procedure, and its own system of law. These courts 
were called law courts, equity courts, admiralty courts, and 
ecclesiastical courts; and the law administered by each was 
called common law, equity, admiralty and maritime law, and 
canon law. As there was to be no state church in this country, 
canon law and ecclesiastical courts were needless, and are 
therefore not mentioned in this Constitution. The other three 
divisions of English law are named in this paragraph. This 
clause of the Constitution gives the United States courts all 
cases in admiralty or maritime law, and takes them away 
from the state courts. It also gives the United States courts 
a part of the cases which may arise in law or equity, and 



SeC. 2.] THE JUDICIARY. 241 

leaves the rest of the cases in law and equity to the state 
courts. 

Under the power given Congress to organize, inferior courts, 
three sets of courts, for law, equity, and admiralty, might 
have been organized in imitation of the English courts. Con- 
gress did not do so. Only one set of courts was organized, 
and they were made courts of law, equity and admiralty 
alike. But the forms of procedure and the body of law re- 
mains different for each class of cases. 

No brief definition can be given of the difference between 
law and equity. Two distinctions in the methods of pro- 
cedure, however, can be easily remembered. There are no 
juries in equity cases, and there are no criminal trials. 

III. The common law. — The common law of England, in 
its widest sense, is that body of customs, precedents and 
forms which had gradually grown up in the course of English 
history. These were law in the colonies as well as in the 
mother country. The colonists, in rebelling against the rule 
•of England, did not wish to lose all that was valuable in the 
institutions of England. Just as their state and national gov- 
ernments were formed largely on the model of the English 
government, so the practice of their courts has been largely 
the same as the practice of the English courts. In the 
United States courts, and in most of the state courts, the 
English common law as it stood at the time of the Revolu- 
tionary War, and so far as it has not been repealed by our 
Constitution and statute laws, is held as good law to-day. A 
notable exception is the case of Louisiana, which we acquired 
from France, where the courts follow the forms and customs 
•of French law. 

IV. Cases under the Constitution, laws and 
treaties. — 

It is plain that the United States courts should have 
jurisdiction of all cases arising under the laws of the 
United States. By Article VI, Clause 2, these are made 

U. S. Con. -16. 



CIVIL GOVERNMENT. [Art. III. 

the supreme law of the land, and over-rule all state laws 
or constitutions when there is any conflict between them. 
The United States courts are bound to maintain this 
supreme law of the land in any case brought before 
them. 

It should be remembered that the subjects upon which the- 
United States can make laws are limited by this Constitution. 
The United States has full jurisdiction only in the District of 
Columbia, in the territories, on the high seas, in the United 
States forts, arsenals, and dockyards, and on United States 
Ships. Everywhere else its jurisdiction is limited. Thus, if 
a robbery is committed in any of the places named above,, 
the person accused of it will be tried in the United States 
courts and by United States law; but if it is committed in the 
jurisdiction of a state, it will be tried before the courts and 
by the laws of that state. But robbery of the mail, although 
committed within a state, would be tried before a United 
States court and by United States laws, because the United 
States has jurisdiction over post offices and post roads. 

Cases may arise under the Constitution, directly, where 
there is no United States statute law involved. Thus, the 
state of New Hampshire passed a law changing the charter 
of Dartmouth College. As the state courts refused to declare 
the law unconstitutional, the case was carried into the United 
States Supreme Court. The Supreme Court decided that the 
charter of a corporation is a contract between the state and 
the corporation, which cannot be changed without the con- 
sent of both parties. As the state law impaired the obliga- 
tion of a contract (I, 10, 1), the Supreme Court decided it to- 
be unconstitutional, and therefore null and void. This was a 
case under the United States Constitution. 

Cases may also arise under treaties made with foreign 
powers. These treaties, while they last, are laws of the 
United States, and binding on every citizen. The punishment 
for violation of treaties necessarily belongs to the United: 






Sec. 2.] THE JUDICIARY. 243 

States courts. Under the Confederation, when we had no 
United States courts, these cases came before state courts, 
which generally failed to punish their violation. The conse- 
quence was, our reputation as a nation suffered, and we might 
easily have been involved in a war, because of neglect to com- 
pel our citizens to obey our own treaties. 

V. Cases affecting ambassadors, etc. — 

All cases affecting ambassadors, other public minis- 
ters, or consuls, are tried in the United States courts. 
These are officers of foreign nations, and the United 
States are bound to protect them and treat them accord- 
ing to the rules of international law. It is therefore 
necessary that all cases affecting them should be tried in 
the United States courts, not in state courts, as the 
United States is responsible for their treatment. 

But not all cases affecting ambassadors can be tried by our 
courts, for, by the law of nations, ambassadors and other 
public ministers are not subject to the criminal or civil law 
of the country to which they are ambassadors, but are sub- 
ject to the laws of their own country. Thus, if the English 
ambassador to this country should commit a crime, he could 
not be tried here, but our government would have to write a 
statement of the case to the English government, whereupon 
he would be recalled and tried in England under English 
laws. The same is true of civil suits. The ambassador of a 
foreign power cannot be sued in this country, but if he run 
in debt and refuse to pay, he must be sued in the country 
to which he belongs; which is generally impracticable. The 
family and officers and servants of an ambassador share in 
these privileges in a less degree. But consuls have no such 
privileges under the law of nations, except in heathen or 
Mohammedan countries. 



244 CIVIL government. [Art. III. 

VI. Cases of admiralty and maritime juris- 

diction. — 

These are cases arising on the high seas and navigable 
waters. It is a very difficult question to exactly define 
the limits of this kind of jurisdiction. The courts have 
not been able to do it, but have made many conflicting 
decisions in regard to the extent of maritime jurisdic- 
tion. 

In general terms, we may say admiralty and maritime juris- 
diction include — 

1. All questions of prizes and captures at sea. 

2. The trial of all crimes committed on the high seas or 
waters of the seas outside of any country, and of all offenses 
against the law of nations. 

3. All cases involving damages done on the high seas, and 
some cases on waters of the sea where the tide ebbs and flows. 

4. Many cases concerning contracts or claims for services 
or sales at sea or in foreign ports. 

Most of the above classes of cases evidently belong to the 
United States courts, because states have no jurisdiction over 
them. (Sec. I, 8, 10, and 11.) 

VII. Controversies to which the United States 

is a party. — 

The United States may be a party to a controversy 
either — 

1. As prosecutor in a criminal case arising under 
United States law. All such cases are prosecuted in 
the name and by the authority of the United States. 
The actual work of the prosecution is done by the At- 
torney General, or by the district attorney of the dis- 






Sec. 2.] THE JUDICIARY. 245 

trict in which the case belongs. He may be assisted by 
other lawyers, if necessary. 

2. As plaintiff in a civil suit. These are prosecuted 
when the United States has a legal claim against any- 
one. 

In violations of the revenue, there may be both a 
criminal prosecution and a civil suit. 

3. As defendant in a civil suit. If anyone has a 
claim against the United States, arising under a contract, 
which the proper officer refuses to pay, he may begin a 
suit in the Court of Claims, and in no other court. But 
if the case is decided against the United States, the claim 
cannot be paid until Congress makes an appropriation 

for it. (I, 9, 6.) 

• 

VIII. Controversies between two or more states. 

It is evident that these controversies must be tried in 
the United States courts, unless they can be settled by 
arbitration. These suits must be begun in the Supreme 
Court. 

"No district or circuit court has jurisdiction in any 
case in which a state is a party. (See Clause 2.) "When 
the Constitution was adopted, there were many unset- 
tled controversies between states, especially • in regard 
to territory. Before the Revolution, controversies be- 
tween the colonies were heard before the king in coun- 
cil. During the Revolution, there was no tribunal to 
decide controversies between the states. The disputes 
between them in regard to land grants led to much 



246 CIVIL government. [Art. III. 

trouble and violence, and might easily have led to war 
between the states. 

The Articles of Confederation provided for the trial 
of such controversies by commissioners. These com- 
missioners acted really as arbitrators, but had no au- 
thority to enforce their decisions. The Supreme Court 
can now decide cases between states, with authority, 
and its decision is final, and must be obeyed. 

IX. Controversies between a state and citizens 

of another state. — 

Suits brought by a state against citizens of another 
state must be tried in the Supreme Court. Other 
United States courts have no jurisdiction. (Clause 2.) 
Citizens of one state cannot sue another state, except in 
the courts of that state. (Am. IX.) 

X. Controversies between citizens of different 

states. — 

A United States court will be likely to be more im- 
partial than a state court in a suit between its own cit- 
izens and the citizens of another state. Controversies 
between citizens of different states are therefore tried in 
the United States courts. 

But the law which regulates such cases is the law of 
the state in which the case occurs. Thus, if a citizen of 
Kansas owes a citizen of Missouri, the citizen of Mis- 
souri may sue in one of the United States district courts 
in Kansas. But that court will try the suit according to 



Sec. 2.] THE JUDICIARY. 247 

tlie laws of Kansas, if he prefers that to the other state 
courts; and in levying an execution, the Kansas debtor 
would be entitled to the exemption provided by Kansas 
law. Congress cannot legislate, except for certain 
things, within the limits of a state. (I, 8.) 

Therefore, when the United States courts take juris- 
diction of controversies between citizens of different 
states, they do not take United States law, but state law, 
when the subject in dispute is not one of those covered 
by the powers of Congress. 

A citizen of the United States is a citizen of the state 
in which he resides. (Am. XI Y.) But a citizen of a 
territory, or of the District of Columbia, is not a citizen 
of any state, and is not included in this provision. 

XI. Controversies about land grants of differ- 
ent states. — 

Even in cases between citizens of the same state, when 
the controversy is respecting land claimed under grants 
from different states, the United States courts have juris- 
diction. Thus all controversies respecting conflicting 
land grants go into the United States courts. In these 
cases, although the states are not, in form, parties to the 
suit, they are involved in it. When a state grants land 
to individuals, it guarantees the title to the land. If 
the title is not good, the state is bound in good faith to 
make the title good or pay damages. Every state is 
therefore interested in the titles to land it has granted, 
and all the more so because a single case will usually in- 



248 CIVIL government. [Art. III. 

volve the questions of law and fact on which the titles 

to many tracts of land depend. 

XII. Conflicting claims of states to land. — The charters 
of several of the colonies and the grants to proprietors, given 
by different sovereigns of England, were generally drawn 
very loosely, and often overlapped one another. As the coun- 
try settled, this led to controversies between the colonies, 
some of which had been settled by the king in council, and 
some of which, were left undecided at the time of the Revo- 
lutionary War. The states had granted land under these con- 
flicting claims to two or more sets of settlers, who fought it 
out in legal and illegal ways, as men will fight when the title 
to their homes is in question. The chief disputes in regard to 
territory and land grants made by states were : 

1. The whole state of Vermont, which was claimed both by 
New Hampshire and New York. 

2. A large part of western New York was claimed by Massa- 
chusetts, as well as by New York. 

3. Northern Pennsylvania was claimed by Connecticut, as 
well as by Pennsylvania. 

4. The Northwest Territory (Ohio, Indiana, Illinois, Michi- 
gan, and Wisconsin) was claimed by Virginia by right of con- 
quest, and parts of it by other states under their charters. 

Besides these, there were questions of the exact boundary 
line between almost all neighboring states. These questions 
were some of them settled just before the Constitution was 
adopted, and others afterwards. In general, we may say that 
men who had bought land and settled on it were secured in 
their titles to it, but only after a great deal of trouble; and 
that the state boundaries were settled as they now stand. 

XIII. Controversies between a state, or the citi- 
zens thereof, and foreign states, citi- 
zens or subjects. — 

All cases to which foreign states or their citizens or 



Sec. 2.] THE JUDICIARY. 249" 

subjects are parties come before the United States 
courts. It is the United States government which is 
held responsible for our treatment of foreigners. The 
United States ought therefore to have jurisdiction over 
cases in which foreigners are parties. But foreigners- 
cannot sue a state in the United States courts. (Am^ 
XL) 

Clause 2. — Original and Appellate Jurisdiction. 

In all cases affecting ambassadors, other public ministers, and con- 
suls, and those in which a state shall be party, the Supreme Court 
shall have original jurisdiction. In all the other cases before- 
mentioned, the Supreme Court shall have appeUate jurisdiction, 
both as to law and fact; with such exceptions and under such 
regulations as the Congress shall make. 

I. Original jurisdiction of the Supreme Court. 

When it is said that the Supreme Court has original 
jurisdiction in certain cases, it is meant that these cases 
must be begun in the Supreme Court. Other cases mav 
reach the Supreme Court, but only when they have been, 
tried in lower courts, and an appeal has been taken from 
their decisions to the Supreme Court. 

The Supreme Court has original jurisdiction in two- 
classes of cases only: 

1. In all cases affecting ambassadors, other public 
ministers, and consuls. 

2. In all cases where a state is a party. 

In these cases original jurisdiction is given to the 
Supreme Court, not because the cases are always im- 
portant, but because there are important parties to the- 
suit. 



250 CIVIL GOVERNMENT. [Art. III. 

H. When it is said that the Supreme Court has op- 
peltate jurisdiction in other cases, it is meant that other 
cases must be begun in some lower court, but may be 
taken to the Supreme Court on an appeal from the de- 
cisions of the lower courts. This appellate jurisdiction 
is to have such exceptions and be under such regulations 
as Congress shall make by law. (See page 236.) 

Clause 3. — Trial oe Crimes. 

The trial of aU crimes, except in cases of impeachment, shall he by 
jury; and such trial shall he held in the state where the said 
crimes shall have heen committed; hut when not committed 
within any state, the trial shall be at such place or places as the 
Congress may by law have directed. 

[See also Amendments V, VI, VII.] 

I. Trial by jury. — 

A jury consists of twelve men impartially chosen. 
All questions of fact in criminal trials are decided by the 
jury; and questions of law are decided by the judge, 
with some exceptions. No person can be convicted of 
any crime in a United States court unless a jury unani- 
mously find him guilty. If the jury unanimously find 
him not guilty, he is released, and can never be tried 
again on that charge. If the jury disagree, a new trial 
must be had with a new jury. 

It is required by Amendment YH, that in all suits at 
common law, where the amount is more than twenty 
dollars, the right of trial by jury shall be preserved. 
This does not include equity cases, or admiralty or mari- 
time cases, which are not governed by the common law. 

Cases of impeachment have already been provided 



Sec. 2.] THE JUDICIARY. 251 

for. An impeachment trial is not a criminal trial, but 
a political proceeding to remove from office an unworthy 
officer. This does not prevent such an officer from be- 
ing also tried in the courts for a crime, if he has commit- 
ted one. Cases of impeachment are therefore not tried 
before a jury, but before the Senate sitting as a high 
court of impeachment. 

A large part of all the cases which come before the 
district and circuit courts require the aid of a jury. A 
jury is thus a part of the judicial department, for the 
time being. This is one of the checks and balances of 
our Constitution, that judges shall not decide the plainer 
questions of fact, but that these are left to the judgment 
of twelve citizens, who are not lawyers. 

II. Where trials are held. — 

Criminal trials must be held in the state where the 
crime was committed. Each state has at least one dis- 
trict court, so that there is no difficulty to the United 
States. This provision is intended as a benefit to the ac- 
cused. It leaves him nearer to his friends, makes it 
easier to procure his witnesses, lessens his expenses, and 
gives him the benefit of the natural prejudices of the 
jury for a citizen of their own state. 

Where crimes are not committed in any state, they 
are tried in some specified court. When committed on 
the high seas, they are tried in the state where the vessel 
first arrives. 



252 CIVIL GOVERNMENT. [Art. Ill, 

SECTION III.— TREASON. 

Clause 1. — The Trial of Treason. 

Treason against the United States shall consist only in levying war- 
against them, or in adhering to their enemies, giving them aid. 
and comfort. No person shall be convicted of treason unless on. 
the testimony of two witnesses to the same overt act, or on con- 
fession in open court. 

I. Treason is the highest crime against society. It is 
an attempt to subvert the government, and it deserves 
severe punishment. But the history of England is full, 
of instances of that being called treason which was not 
really treason; of innocent persons being convicted of~ 
treason, and of extreme and oppressive punishments for ~ 
treason. To prevent such things in this country, this 
section was put into the Constitution. 

Treason against the United States is denned to con- 
sist only in levying war against them, or in adhering to < 
their enemies, giving them aid and comfort. These - 
words are taken from an old English statute, passed five- 
hundred years ago, which defines treason against the 
King of England, and which was in force at the time of 
the [Revolution. 

This is the famous statute 25 of Edward III, which defines ^ 

treason to be — 

"1. To compass or imagine the death of the King, Queen, or 
their eldest son and heir. 

"2. To violate the King's wife, or his eldest daughter un- 
married, or the wife of his eldest son and heir. 

"3. To levy war against the King in his realm. 

"4. To adhere to the King's enemies in the realm, by giving: 



Sec. 3.] THE JUDICIARY. 253 

them aid and comfort, or by sending- them intelligence or pro- 
visions, or selling- them arms. 

"5. To slay the chancellor, treasurer, or the King's justice, 
while in their place administering- justice." 

Many other things were, at one time or another, made trea- 
son in England. Our Constitution adopts the third and 
fourth of the above only. 

It is not treason to conspire against the United States, or to 
agree to levy war, any more than it is murder to conspire to 
commit murder. But it is a less crime. It is not until the 
war is actually levied that there can be treason. But as soon 
as a rebellion against the government or a war by a foreign 
power is actually begun, then any assistance given the 
enemy is treason. In time of war or rebellion we ought to 
be careful of our acts, that we do not aid the enemy indi- 
rectly. When the country is at war, she calls for the help of 
all her citizens, and at least demands that they shall not help 
her enemies. 

II. The proof of treason. — 

No person ought to be convicted of so great a crime as 
treason except on the clearest evidence. The Constitu- 
tion, therefore, requires that the charge should be 
proved, either — 

1. By the testimony of two witnesses to the same act. 
This act must be an overt act, that is an open act. These 
witnesses must testify to the same act; any number of 
"witnesses each to a separate act are not allowed. This 
is to give an opportunity to compare the testimony to- 
gether and to detect false swearing. 

2. Or by a confession in open court. A confession in 
private may easily be misunderstood or misstated by 
the person to whom the confession was made. The con- 



254 CIVIL government. [Art. III. 

fession, therefore, must be made in open court. It 
would be sufficient for the accused to simply plead guilty 
at the trial to make it a conf esson in open court. 

Clause 2. — The English Punishment of Treason. 

The Congress shall have power to declare the punishment of trea- 
son, but no attainder of treason shall work corruption of blood, 
or forfeiture, except during the life of the person attainted. 

I. The reason for this clause. — 

The punishment of treason under English law was 
very severe. The traitor was put to death in a barbar- 
ous manner; his whole property was confiscated, he was 
attainted, and this corruption of blood descended to his 
posterity so that no one could inherit from him or 
through him. 

Such extreme and barbarous punishments are forever 

forbidden in the United States by the Constitution. 

Congress has declared the punishment of treason to be 

death by hanging. A less punishment may be inflicted, 

but not less than imprisonment for five years and a fine 

of ten thousand dollars. 

The details of the death of a convicted traitor in England 
were: 

1. He was drawn to the place of execution on a hurdle or 
sledge. In ancient times he was dragged on the ground. 

2. He was hanged by the neck, but cut down before he was 
dead. 

3. His heart and entrails were drawn out of his body while 
he was still alive, and burnt in his presence. 

4. His head was cut off, and his body divided into four quar- 
ters, which were in ancient times stuck over the gateways of 
London or other cities. 



Sec. 3.] THE JUDICIARY. 255 

The above-named punishments are commonly referred to 
as hanging, drawing and quartering. The king could com- 
mute this punishment to beheading. Women were only 
hanged. 

II. Attainder of treason. — The conviction of treason un- 
der the common law of England involved attainder — that is, 
it tainted the person so convicted. Persons could also be at- 
tainted by a bill of attainder without a trial, which has the 
same effect. A conviction of treason of itself brought an at- 
tainder of treason on the person convicted. No bill of at- 
tainder was needed in such a case. 

This attainder in either case worked corruption of blood 
and forfeiture. Any person attainted, by that fact became 
corrupt in blood, and forfeited all his property, titles, and 
honors. 

The Constitution forbids bills of attainder, (I, 9, 3, and I, 
10, 1,) so that no person can be attainted except by a regular 
trial, and then only for treason as denned in this section. 
But it does not abolish attainder of treason. It only limits 
its effects to the person thus attainted. 

III. Corruption of blood. — Under the common law, cor- 
ruption of blood follows from any attainder. "By corruption 
of blood all inheritable qualities are destroyed, so that an at- 
tainted person can neither inherit lands nor other heredita- 
ments from his ancestors, nor retain those he is already in 
possession of, nor transmit them to any heir. And this de- 
struction of all inheritable qualities is so complete that it ob- 
structs all descents to his posterity, whenever they are 
obliged to derive a title through him to any estate of a re- 
mote ancestor. So that if a father commits treason, and is 
attainted and suffers death, and then the grandfather dies, 
his grandson cannot inherit any estate from his grandfather, 
for he must claim through his father, who could conyey to 
him no inheritable blood. Thus the innocent are made the 
victims of a guilt in which they did not, and perhaps could 
not, participate, and the sin is visited upon remote genera- 



356 CIVIL GOVERNMENT. [Art. III. 

i;ions." (Story on the Constitution, Sec. 1299.) This injus- 
tice of the English common law is forbidden by this clause. 

IV. Forfeiture. — By the English common law, an attain- 
der of treason worked not only corruption of blood, but also 
forfeiture; that is, a person convicted of treason forfeited all 
3iis property of every description, and all his titles and hon- 
ors. Persons were often convicted of treason purposely to 
confiscate their property. "Rapacity has been thus stimu- 
lated to exert itself in the service of the most corrupt tyr- 
anny; and tyranny has been thus furnished with new oppor- 
tunities of indulging its malignity and revenge, of gratifying 
its envy of the rich and good, and of increasing its means 
to reward favorites and secure retainers for the worst deeds." 
(Story on the Constitution, Sec. 1300.) 

The Constitution limits this by providing that no attainder 
of treason shall work corruption of blood or forfeiture, ex- 
cept during the life of the person attainted. A conviction of 
treason in the United States does not of itself carry any cor- 
ruption of blood or forfeiture. Treason can be punished in 
-such way as is prescribed by law, like any other offense; but 
the common-law punishments of treason are abolished by 
the Constitution. If the Constitution had not abolished them, 
at might have been claimed that as the common law is in 
force in this country so far as it is not expressly repealed, 
that these common-law punishments for treason were in 
"force in the United States. 

V. Treason trials. — During and after the Revolutionary 
IVar many persons were attainted of treason against their 
-states for acting with the royal troops. A large amount of 
property was confiscated, much of which was afterwards re- 
stored. This was before the adoption of this Constitution. 
Under the United States laws, no person has ever been con- 
victed of treason. The two most famous cases were the trial 
of Aaron Burr and the case of Jefferson Davis. 

Aaron Burr had been Vice-President of the United States, 
and had lacked only one vote in the House of Representa- 
tives of an election as President. Disappointed of his am- 



Appendix.] the judiciary. 257 

bition to be President, he engaged in a scheme the object of 
which was supposed to be to set up an independent nation 
west of the Alleghany Mountains. But his scheme, what- 
ever it was, was frustrated, and he was arrested and tried 
for treason in 1807. He was acquitted for lack of legal proof. 
Jefferson Davis was elected president of the Southern Con- 
federacy. When the civil war was closed by the victory of 
the Union arms, he was captured and held for trial. But his 
case was never brought to trial, and no one else was brought 
to trial for treason by the victorious government. No other 
nation ever went through a civil war without trials and pun- 
ishments of treason. 



APPENDIX TO PART V. 

State judiciary systems— 

In the states originally the courts were organized on 
the same general plan as the United States courts, the 
judges being appointed, not elected, and holding office 
for life or during good behavior. The intention of this 
was to make the courts independent interpreters of the 
law. But the democratic movement in the first half of 
the nineteenth century in many state governments led to 
the election of judges by the people for a term of years. 
The intention of this was to make the courts organs of 
the popular will, as the legislature and the executive and 
administrative departments had been made through a 
similar election by the people. As far as the courts 
were concerned, the change was not made in all states, 
and it is still a matter of discussion whether judges 
should be elected or appointed, and whether their term 

U. S. Con.— 17. 



258 CIVIL GOVERNMENT. 

of office should be for life or for a limited time. The 
term of office lias usually been made long, especially for 
judges of the higher courts, and it is usual to re-elect or 
reappoint an acceptable judge. It is also quite general- 
ly the practice, where judges are elected, not to make 
their election a matter of partisan politics. The original 
practice was in many states for the legislature to appoint 
the judges as well as the state officers. In several of the 
states, the judges are still appointed by the legislature. 

In most states there is a supreme court having appel- 
late jurisdiction, and circuit or district courts, having 
original jurisdiction. In some large states there are 
three classes of state courts instead of two. The higher 
courts usually consist of several judges, and the district 
or circuit courts of one judge. But in some states "side 
judges'' are elected for the district courts, generally from 
persons not lawyers, who sit with the judge, and with 
him constitute the court. 

Besides these state courts, there are the following local 
courts : 

County courts, consisting of one judge, sometimes 
with only probate powers, and sometimes with additional 
powers almost up to those of a district court. 

In cities there are municipal and police courts, and 
in some places the powers of such courts are exercised 
by mayors or recorders. 

Justices of the peace are elected or appointed in each 
local subdivision of the county. 

Juries are used in all courts in which common-law 



Appendix.] the judiciary. 259 

cases are tried. Equity cases are tried before the judge 
alone. A jury in a court of record consists of twelve 
persons, but in a justice court or county court is usually 
of six. Appellate courts, such as state supreme courts, 
do not have juries, for the reason that juries do not de- 
cide questions of law, but of fact. 

In the rare case where a question of fact conies up 
in an appellate court, it is sent down to a lower court 
to be tried before a jury in that court. 



WOEK FOE THE STUDENT. 
[See State Constitution and Statutes.] 

1. What courts are provided for in your state constitution? 

2. What other courts, if any, have been created by statute? 

3. What is the name of your highest court? 

4. Of how many judges is it composed? 

5. Are they elected or appointed, and if appointed, by 
whom? 

6. What is their term of office? 

7. What is the salary of each? 

8. Where does this court hold its sessions? 

9. Has your state any intermediate courts between the 
highest court and the district or circuit courts? If so, how 
are such courts organized? 

10. How many district or circuit courts are there in your 
state? 

11. How are the judges elected or appointed? 

12. What is their term of office? 

13. What is their salary? 

14. Are there "side judges"? 



260 CIVIL GOVERNMENT. 

15. Have you county courts, probate courts or municipal 
courts in each county or in some of the counties only? 

16. How are such courts as you have of these kinds organ- 
ized? 

17. What are the general powers of such courts in your 
state? 

18. How are justices of the peace elected or appointed in 
your state? 

19. What special courts are there in cities in your state such 
as municipal courts, police courts, mayors' courts or record- 
ers' courts? 

20. If judges are elected in your state, when is the election 
held, at the general election, or at some other time? 



mxt m. 



« 



/Miscellaneous. 






Here is the record of one century's harvest of Democracy : 

1. The majority of the English-speaking race under one republican flag, 
at peace. 

2. The nation which is pledged by act of both parties to offer amicable 
arbitration for the settlement of international disputes. 

3. The nation which contains the smallest proportion of illiterates, the 
largest proportion of those who read and write. 

4. Ttie nation which spends least on war, and most upon education ; which 
has the smallest army and navy, in proportion to its population and wealth, 
of any maritime power in the world. 

5. The nation which provides most generously during their lives for every 
soldier and sailor injured in its cause, and for their widows and orphans. 

6. The nation in which the rights of the minority and of property are most 
secure. " 

7. The nation whose flag, wherever it floats over sea and land, is the sym- 
bol and guarantor of the equality of the citizen. 

8. The nation in whose Constitution no man suggests improvement ; whose 
laws as they stand are satisfactory to all citizens. 

9. The nation which has the ideal Second Chamber, the most august as- 
sembly in the world — the American Senate. 

10. The nation whose Supreme Court is the envy of the ex-Prime Minister 
of the parent land. 

11. The nation whose Constitution is " the most perfect piece of work ever 
struck off at one time by the mind and purpose of man," according to the 
present Prime Minister of the parent land. 

12. The nation most profoundly conservative of what is good, yet based 
upon the political equality of the citizen. 

13. The wealthiest nation in the world. 

14. The nation first in public credit, and in payment of debt. 

15. The greatest agricultural nation in the world. 

16. The greatest manufacturing nation in the world. 

17. The greatest mining nation in the world. 

Many of these laurels have hitherto adorned the brow of Britain, but her 
child has wrested them from her.— Andrew Caenegie, in 1886, in his book 
entitled, Triumphant Democracy. 



Sec. 1.] MISCELLANEOUS. 263 



ARTICLE IV. 

KELATIONS OF THE STATES. 
SECTION I.— STATE RECORDS. 

Fall faith and credit shall be given in each state to the public acts, 
records, and judicial proceedings of every other state. And the 
Congress may, by general laws, prescribe the manner in 'which 
such acts, records and proceedings shall be proved, and the effect 
thereof. 

I. The reason for this section. — 

The laws and records of one nation are not accepted 
in the courts of another nation with full faith and credit, 
but only under certain limitations and conditions. But 
as we are one nation, and not a collection of nations, 
it is provided that the official records of one state shall 
have full faith and credit given them in every other 
state. These records are not to be treated as the records 
of a foreign state, but as the records of another part 
of the same nation. 

II. The following documents are embraced in this 
statement: 

1. Public acts — that is, the constitutions and statute 
laws of the states. 

2. Public records — such as registration of deeds and 
wills, records of marriages, and journals of the legisla- 
ture. 

3. Judicial proceedings — that is, judgments, writs 
and processes of courts, and published reports of de- 
cisions. 



264 CIVIL government. [Art. IV. 



SECTION II.— RELATIONS OP STATES TO THE INHAB- 
ITANTS OF OTHER STATES. 

Clause 1. — Privileges oe Citizens. 

The citizens of each state shall he entitled to all privileges and im- 
munities of citizens in the several states. 

Privileges of citizens of one state in any other 
state. — 

As this is one nation, not a collection of nations, it is 

plain that intercourse between the states should be as 

free as possible. The Constitution provides that no 

state shall give its own citizens any special privileges 

over the citizens of sister states. 

Thus the Supreme Court decided that a law of Maryland 
was unconstitutional, which imposed a license on. all travel- 
ing- salesmen who were not citizens of Maryland. If the law 
had imposed the license on all traveling salesmen, it would 
have been constitutional. But as it discriminated against 
citizens of other states, it violated this clause of the United 
States Constitution. 

Clause 2.— Fugitive Criminals. 

A person charged in any state with treason, felony, or other crime, 
who shall flee from justice, and he found in another state, shall, 
on demand of the executive authority of the state from which he 
fled, be delivered up, to be removed to the state having jurisdic- 
tion of the crime. 

I. Extradition laws. — 

In ancient times, criminals who escaped into another 
country generally escaped punishment thereby. Civil- 
ized nations now generally give up escaped criminals to 
one another. This is done by virtue of special treaties, 



Sec. 2.] MISCELLANEOUS. 265 

called extradition treaties. Criminals are usually given 

up by one nation to another only for such crimes as are 

named in the treaties, and under the forms prescribed 

by them. But as a matter of courtesy, nations which 

have no extradition treaties with one another often give 

up each other's criminals. 

As we are one nation, the extradition of criminals 

between the states is made to depend not upon treaties, 

but upon the Constitution. This provision has been 

made by act of Congress to apply to the territories and 

the District of Columbia as well as to the states. 

In the case of a person accused of any crime against a 
state law, the usual rule in all the states is, that a warrant 
must first be made out for his arrest by some proper officer, 
based on probable evidence. These warrants are good only 
within the jurisdiction of the state. But the person to be ar- 
rested on the warrant may escape from the state, or he may 
escape from the officer after his arrest and get out of the state. 
In either case, there is just one course to pursue under this 
Constitution. The officer who has the warrant applies to the 
governor of his own state, who then issues a requisition upon 
the governor of the state to which the accused person has 
fled. Upon this requisition, the governor who receives it au- 
thorizes some officer of his own state to arrest the person 
called for in the requisition and hand him over to an officer 
from the state which demands him. In the case of a person 
convicted of a crime who escapes from prison, the course is 
the same. 

II. Concurrent jurisdiction of states. — The jurisdiction of 
a state extends to the boundaries of the state, except where 
a lake or river lies in several states. In that case, they all have 
concurrent jurisdiction upon the lakes or river. That is, a 
crime committed on the lake or river may be tried in the 
courts of any of the states in which it partly lies. Thus, Lake 



266 CIVIL GOVERNMENT. [Art. IV. 

Michigan lies partly in Michigan, partly in Wisconsin, partly 
in Illinois, and partly in Indiana. A crime committed on the 
waters of Lake Michigan may be tried in the courts of Michi- 
gan, Wisconsin, Illinois, or Indiana, whichever is most con- 
venient. All questions are thus avoided about the exact 
boundary line, which would be difficult to determine exactly 
•on the water. 

Clause 3. — Fugitive Slaves. 

No person held to service or labor in one state, under the laws 
thereof, escaping into another, shall, in consequence of any law 
or regulation therein, be discharged from such service or labor, 
but shall be delivered up on claim of the party to whom such 
service or labor may be due. 

I. This clause obsolete. — 

The same principle applied to fugitive slaves as to 
fugitive criminals. As we are one nation, runaway 
slaves were not to gain their freedom by crossing the 
boundary line of any state. The free states were to re- 
spect the institution of slavery in the slave states. If a 
master carried his slaves to a free state, they became 
free; but if a slave ran away to a free state, he still re- 
mained a slave, and should be given up on demand. 

All this was changed by the abolition of slavery. Un- 
der the thirteenth amendment, there can be now no 
slavery in any state, and consequently no fugitive slaves. 

II. The persons included in the phrases, "persons held to 
service or labor," were: 

1. Slaves, who were owned like cattle, and who were held 
to service for life, and their children after them. The student 
should notice here, as elsewhere in the original Constitution, 
the words slave and slavery are carefully avoided. The fram- 
-ers of the Constitution when drawing up a form of govern- 



Sec. 3.] MISCELLANEOUS. 267 

ment for a free nation were ashamed to confess in the same 
'document the existence of slavery in the nation. They hoped 
it would soon be peacefully abolished. 

2. Apprentices, who are boys bound out for a term of years 
i;o learn a trade. They are not slaves, but their masters have 
a rig-ht to their services during" the time for which they are 
bound out. The old system of apprenticeship, however, has 
almost gone out of use. 

3. Other persons bound out to service for a term of years. 
It was once common for persons to bind themselves out for 
a term of years, to secure a passage to this country. When 
they arrived, their services for that time were sold to anyone 
who would buy them. This practice has also passed away. In 
some states pauper children are still bound out till they be- 
come of age. 

This clause would still apply to any persons of the second 
or third classes who ran away from one state to another. 
But as their numbers are very few, and as slavery has been 
abolished, this clause of the Constitution has lost its import- 
ance. 



SECTION III.— NEW STATES AND TERRITORIES. 

Clause 1. — Admission of New States. 

Dew states may be admitted by the Congress into this Union; but 
no new state shall be formed or erected within the jurisdiction 
of any other state; nor any state be formed by the junction of 
two or more states, or parts of states, without the consent of the 
legislatures of the states concerned as well as of the Congress. 

I. New states may be admitted. — 

The United States of America here announces a new 
principle of national life. Nations before this had not 
been in the habit of admitting their dependencies, 
whether conquered provinces or colonies, to equal politi- 



268 CIVIL GOVERNMENT. [Art. IV. 

cal privileges. It was because Great Britain refused the 
colonies a representation in Parliament, and attempted 
to govern them without their consent, that they rebelled 
and made themselves into the United States. They now 
provided against repeating the mistake. New states 
may be admitted into the Union. When they shall be 
admitted, or under what conditions, is a matter left to 
the discretion of Congress. But when a state is admit- 
ted, it is entitled to all the privileges of any other state, 
as guaranteed by this Constitution. 

II. The consent of states is required to change 
their boundaries. — 

Congress may carve out states as it pleases from the 
territory outside of any state, but it cannot change the 
boundaries of a state without its consent. 

1. No new state can be formed within the limits of 
another state without its consent. Maine, Kentucky, 
Tennessee and West Virginia were thus formed. 

2. No new state can be formed by joining two or 
more states without the consent of all the states affected. 
No such case has occurred. 

3. Jfo new state can be formed from parts of other 
states without the consent of the states affected. Ver- 
mont was formed by land claimed by both New Hamp- 
shire and New York. 

4. It is plainly implied, though not stated directly, 
that a part of one state cannot be taken from it and 
added to another state without the consent of both the 



Sec. 3.] MISCELLANEOUS. 269 

states. But disputes in relation to the boundary are set- 
tled by the Supreme Court (III, 2, 1-2). The con- 
sent of states is to be given by their legislatures, which 
represent the sovereign people of the states. 

III. How states are admitted. — 

The method of admitting states is not always the 
same; but the usual method is this: The legislature of 
a territory sends a memorial to Congress, asking to be 
admitted as a state. Congress passes an "enabling act/' 
giving authority to call a convention. This convention 
frames a constitution, to be voted upon by the people. 
Congress then passes an act admitting the new state to 
the Union. 

But Congress has several times refused to pass either 
the enabling act or the act admitting the state, and the 
people have several times voted down a constitution pro- 
posed by a convention. In either case, the territory 
fails at that time to become a state. 

Congress has generally required a territory to have 
population enough to be fairly entitled to one Repre- 
sentative in Congress, before admitting it as a state. 
No territory which had so much population ever was 
long kept out of the Union. 

Clause 2. — The Territories. 

The Congress shall have power to dispose of and make aU needful 
rules and regulations respecting the territory or other property 
belonging to the United States; and nothing in this Constitution 
shall be so construed as to prejudice any claims of the United 
States, or of any particular state. 



270 CIVIL GOVERNMENT. [Art. IV. 

I. The power to acquire and dispose of territory. 

The power to acquire territory or other property is 
not expressed in this Constitution. It does not need to- 
be so expressed. This power is an attribute of sover- 
eignty. If the United States is a nation, it can, of 
course, acquire and hold territory or other property- 

Before the Constitution was adopted, the United States ac- 
quired territory from several states by the cession of their 
claims; and since the Constitution was adopted, the United 
States has trebled its territory by purchase and by conquest,, 
by discovery and annexation. But the United States at that 
time had the great question of the Northwest Territory on 
its hands, which led to the Ordinance of 1787, adopted by 
Congress while the convention was in session, and which ledi 
also to this clause in the Constitution. 

II. The power to dispose of territory or property is also> 
an attribute of sovereignty. It would exist if it was not ex- 
pressed in the Constitution. But this clause puts the power 
in the hands of Congress. Thus, Alaska was bought of Rus- 
sia, under the general power of any nation to acquire and 
dispose of territory. It was therefore done by treaty, not 
by act of Congress. The President, with the consent of two- 
thirds of the Senate, bought Alaska. But if we should grow 
tired of our bargain and wish to sell Alaska again, an act 
of Congress would be needed to authorize the sale, under thi& 
clause. Otherwise it could be sold as it was bought, by the 
treaty-making power. So, also, ships of war, arms, clothing, 
etc., of which we had more than was needed at the close of 
the civil war, were sold under authority of an act of Congress. 
No territory of the United States has ever been sold to an- 
other nation. But Congress ceded that part of the District 
of Columbia south of the Potomac river back to Virginia un- 
der this clause. 



Sec. 3.] MISCELLANEOUS. 271 

III. The power to govern territory. — 

The power to govern the territory it holds is also an 
attribute of a nation's sovereignty. Every nation has 
this right, subject to the limitation of treaties and con- 
stitutions. But this clause gives the power to govern 
the territory of the United States to Congress rather 
than to any other branch of the government. 

Congress has generally acted in the relation of a state 
legislature, as well as of the national legislature, to the 
District of Columbia and to the unorganized territories 
of the United States, and has made all their laws. But 
in all the organized territories Congress has authorized 
the people to govern themselves, subject to the govern- 
ment of the United States. 

Territorial legislatures are elected by the people; but 
the governor and judges are appointed by the President, 
with the consent of the Senate. In such case, Congress 
really governs indirectly. It delegates the actual work 
of governing to the territorial government, but it re- 
serves the right to reverse their action, or even abolish 
their government, at any time. These territorial gov- 
ernments are very much like the colonial governments 
before the Revolution. The territories are really colo- 
nies of the United States, and are governed as such. 

IV. No prejudice to state or United States claims . 

It is provided that nothing in this Constitution shall 
be so construed as to prejudice any claims of the United 
States or of any particular state. This was inserted to 



272 CIVIL GOVERNMENT. [Art. IV. 

satisfy some states whose claims to territory had not yet 
been settled. The conflicting claims of the states to ter- 
ritory west of the Alleghanies had nearly all been settled 
just before the Constitution was framed. But some of 
these claims still remained at that time unsettled. All 
these claims were finally settled peaceably. 

V. Claims and cessions of territory by the states. — The 
original settlements of the English colonies were made along 
the Atlantic coast. The English crown claimed this territory 
by virtue of the discoveries of the Cabots, and other later ex- 
plorers. The crown granted these lands to the companies 
and proprietors that settled them, with very little regard for 
geographical accuracy. Massachusetts, Connecticut, New 
York, Virginia, the two Carolinas, and Georgia, all had grants 
of the land within their present boundaries, but stretching 
westward to the "South Sea" — that is, the Pacific Ocean. The 
other six colonies had grants not quite so vague and exten- 
sive, but indefinite enough to give rise to many disputes about 
boundaries. If the student will refer to a historical map, he 
will see that the claims of Massachusetts overlapped the 
claims of New York; that the claims of Connecticut over- 
lapped those of New York and Pennsylvania, and that the 
claims of the Carolinas and of Georgia were likely to conflict. 
Besides these, New York and New Hampshire each had a 
claim on what is now Vermont, by virtue of English char- 
ters, and almost every colony had an unsettled question of 
boundary with its neighbor. 

When the Eevolution made the colonies independent states, 
no power was left to settle these conflicting claims. To add 
to the confusion, Virginia, in 1777, sent an expedition under 
George Rogers Clarke, which captured the country between 
the Ohio, the lakes, and tl\e Mississippi, from the English, and 
Virginia claimed this territory by right of conquest. It was 
certain that we should not have acquired this territory at the 



Sec. 3.] MISCELLANEOUS. 273 

close of the Revolution if Virginia had not conquered it, so 
that the claim of Virginia had a show of reason. 

These claims were to two things — to jurisdiction and to the 
right of eminent domain over the soil; that is, each state 
claimed certain territory to govern, and also claimed all the 
land in it not held by private persons, with power to ex- 
tinguish the Indian titles, and to give away or sell the land. 
On the strength of these claims, the states had sold land or 
given it away to Revolutionary soldiers. But the conflict of 
state claims produced a conflict of titles to land. Thus, Con- 
necticut had sold lands in the Wyoming valley, in north- 
eastern Pennsylvania, to settlers; but Pennsylvania claimed 
that territory, and also sold the same land. Thus there were 
two sets of proprietors of the land, the actual settlers from 
Connecticut and the speculators who had bought of Pennsyl- 
vania. The result was that the two states almost went to 
war. Again, New Hampshire sold lands in Vermont to her 
own citizens, who settled what was called "The New Hamp- 
shire Grants." New York claimed the territory, and tried to 
enforce the claim. The "Green Mountain Boys" organized 
and armed to resist the claim, and if the Revolution had not 
broken out there would have been a little war between the 
colony of New York and the settlers of Vermont. It is not 
to be wondered at that each state claimed all it could. But 
it was necessary to the peace and safety of the Union that 
these conflicting claims should be settled as soon as possible. 

During the war, the state legislatures and Congress passed 
various resolutions. At last New York led the way in giving 
up her claims to the west for the general good in 1780, Vir- 
ginia followed in 1784, Massachusetts in 1785, and Connecticut 
in 1786. All this was done before the Constitution was 
adopted. As soon as all the conflicting claims to the territory 
between the Ohio, the lakes and the Mississippi had been 
ceded to the United States, Congress passed the celebrated 
Ordinance of 1787, while the Constitutional Convention was in 
session, for the government of that territory, which has been 
the model for all territorial governments since. The con- 
U. S. Con.— 18. 



274 CIVIL GOVERNMENT. [Art. IV. 

flicting- claims of Massachusetts and Connecticut with New 
York and Pennsylvania were adjusted by arbitration. 

New Hampshire and New York both gave up their claim to 
Vermont, and it was admitted to the Union in 1791. Virginia 
gave its consent to Kentucky being set off from her territory 
into a separate state in 1792, and North Carolina to Tennessee, 
becoming a separate state in 1796. Other cessions of western 
territory were made by South Carolina in 1790, and by Georgia 
in 1802. Thus all these conflicting claims were settled by 
peaceable means. 

The United States in all these cases gained the entire juris- 
diction of the territories ceded, but the title to the land was 
not all given to the United States. Most of the states kept a 
part of the land and granted it to their Kevolutionary sol- 
diers. So now when the United States erects a state out of 
its territory, it gives up such part of its jurisdiction as a 
state is entitled to under this Constitution, but it keeps its 
lands, unless it specially gives a part of them to the state. 

VI. Territory since acquired. — The original limits of the 
United States were between the Atlantic, the Mississippi, and 
the boundary of Canada. But on the south, the United States 
did not touch the Gulf of Mexico. Spain held what is now 
Florida and a strip extending west to the Mississippi, and all 
west of that river. 

In 1803 we purchased of France all of what was then called 
Louisiana. France had just acquired it from Spain by a se- 
cret treaty. Louisiana then included "the island and city of 
New Orleans," and all the valley of the Mississippi which lies 
west of that river, with some vague claim to the country 
west of the Rocky Mountains. 

The coast of Oregon had been discovered by two trading 
ships from Boston in 1788, and the Columbia (or Oregon) river 
in 1792, by one of the same ships. In 1804, an exploring ex- 
pedition under Lewis and Clark was sent across the country, 
which explored the valleys of the Missouri and of the Colum- 
bia. This was followed by settlement in 1811. We thus ac- 
quired Oregon by discovery, if we did not already have a title 



Sec. 3.] MISCELLANEOUS. 275 

to it by the purchase of Louisiana. We claimed as far north 
as the latitude of 54° 40', and the English claimed all down 
to California. We finally compromised on the present bound- 
ary. 

In 1819 we purchased Florida of Spain, after we had cap- 
tured it in time of nominal peace by a series of filibustering 
operations. Texas revolted from Mexico in 1835, and declared 
its independence in 1836. It was independent for nine years, 
and in 1845 was annexed to the United States, at its own re- 
quest. In this case, Texas retained the title to her soil, and 
was admitted at once as a state on the same footing as the 
other states. 

At the close of the "war with Mexico we gained, by a mix- 
ture of conquest and purchase, -what was then called New 
Mexico and California, including all the territory westward 
to the Pacific and south of Oregon. The southern part of 
Arizona was added to this by purchase from Mexico in 1853; 
and lastly, in 1867, we purchased Alaska of Russia. 

It should be remembered that in acquiring all this territory 
we acquired rights of sovereignty only. The title to the land 
has been purchased of the various Indian tribes, and a large 
part of the land thus acquired has been sold or given away 
to encourage settlement. And as fast as the territory has 
been settled sufficiently, it has been made first into organized 
territories, and then into states. It is not the policy of the 
United States to govern the territory it acquires as dependent 
provinces, but to erect it into free states as fast as it can 
wisely be done. It is the glory of the states of the Union 
that they are not jealous of admitting other states to their 
sisterhood. Already the center of population and of power 
has passed to the westward of the Atlantic states. The new 
states which have been erected out of the territory of the 
United States already surpass the original thirteen states in 
number, in size, in population, and in wealth. 



276 CIVIL GOVERNMENT. [Art. IV. 



SECTION IV.— FEDERAL PROTECTION OF STATES. 

The United States shall guaranty to every state in this Union a 
Republican form of government, and shall protect each of them 
against invasion, and on application of the legislature, or of the 
executive (when the legislature cannot be convened), against 
domestic violence. 

I. Guaranty of a republican form of government. 

The Constitution provides that the United States shall 
guarantee to every state in this Union a republican form 
of government. This means that no state government 
shall be a monarchy or an aristocracy. States have had 
various details of government in their constitutions, and 
no attempt has ever been made to interfere with them 
on the ground that they are not republican. But should 
a tyrant ever usurp power in a state, or a few men, not 
the lawful choice of the people, ever seize on the govern- 
ment of a state, then it would be the duty of the United 
States to step in and overthrow the unrepublican govern- 
ment and call on the people to organize a more suitable 
one. Congress alone could do this, and the President 
could only act as authorized and directed by Congress 
in such a case. Nor could the Supreme Court have any 
jurisdiction in such a case. The question would be 
purely a political one, and therefore wholly beyond their 
jurisdiction. Congress alone can decide when a state no 
longer has a republican form of government, and how 
such a government shall be guaranteed to it. 

Fortunately no such case has ever arisen, and the 
whole history of our states shows a constant tendency 



See. 4.] MISCELLANEOUS. 277 

toward a more republican rather than a less republican 
form of government. 

II. Protection against invasion. — 

The United States is required to protect every state 
in the Union against invasion. Even if this clause did 
not expressly state this, it would be the duty of the gov- 
ernment to protect the states against invasion. It is one 
of the greatest things for which governments are organ- 
ized, to protect against foreign invasion; and if nothing 
were said about it in the Constitution, it would still be 
the duty of government. 

Besides, the preamble of the Constitution gives, 
among the objects of this Constitution, "to provide for 
the common defense," and this would include defense 
against invasion. 

What department of the government is intrusted with 
this power? The executive. The President generally, 
by his orders to the army and navy, defends the whole 
United States against invasion. But in sudden danger, 
the officer of the army or navy who is in command at 
the point of danger does all he can until he hears from 
the President. 

III. Protection against domestic violence. — 

The Constitution also guarantees every state in the 
Union protection against domestic violence. But for 
fear that the federal government might make riots or lo- 
cal insurrections a pretext to meddle too much with state 



278 CIVIL GOVERNMENT. [Art. IV. 

affairs, it is provided that this protection shall only be 
; given on the application of the proper state authority. 
This is the state legislature, or the governor if the legis- 
lature is not in session or cannot be convened. 

The President can only interfere to put down an in- 
surrection in a state when he is properly summoned, and 
it is fair to infer that his interference can only last until 
the domestic violence is suppressed, and that he must 
then cease his protection. 

Several cases have arisen of domestic violence in a 
state, and the federal power has been found most useful 
to protect against riot and insurrection. 

IV. Rival state governments. — But the most delicate case 
is that which has several times occurred, when there are two 
rival governments, each claiming to be the lawful one, and 
one or both appealing to the President for help against the 
other. In such cases, who shall decide which is the lawful - 
government? This case differs decidedly from the case of a 
riot or insurrection, where there is no pretense of legality. 
When two rival governments exist in a state, and one calls 
for aid against the other, the President must know which is 
the lawful government before he can help either. His help 
will be the practical decision as to which shall be the govern- 
ment of the state, and will decide the question of fact, if not 
of law. 

The answer is that in such a case, if Congress has recog- 
nized either government, the President is bound to follow 
that decision. But if not, then the President must decide to 
the best of his ability. But Congress may at any time re- 
verse that decision and direct a change of policy. 



MISCELLANEOUS. 279 



ARTICLE V. 

AMENDMENTS. 

The world advances, and in time outgrows 
The laws that in our fathers' day were best. 

—Lowell. 

The Congress, whenever two-thirds of both, houses shall deem it 
necessary, shall propose amendments to this Constitution, or, on 
the application of the legislatures of two-thirds of the several 
states, shall call a convention for proposing amendments, which, 
in either case, shall be valid to all intents and purposes, as part 
of this Constitution, when ratified by the legislatures of three- 
fourths of the several states, or by conventions in three-fourths 
thereof, as the one or the other mode of ratification may be pro- 
posed by the Congress; provided, that no amendment which may 
be made prior to the year one thousand eight hundred and eight 
shall in any manner affect the first and fourth clauses in the 
ninth section of the first article; and that no state, without its 
consent, shall be deprived of its equal suffrage in the Senate. 

I. The method of making amendments. — 

Amendments to the Constitution may be made in four 
different ways. In actual practice only one method has 
been used. Congress has several times proposed amend- 
ments by a two-thirds vote of each house, which have 
been ratified by three-fourths of the state legislatures. 

The three other possible methods of amending the 
Constitution are: 

1. Congress by a two-thirds vote of each house may 
propose the amendment, and may submit it to a conven- 
tion in each state. If conventions in three-fourths of 
the states ratify the proposed amendment, it is adopted. 



280 CIVIL GOVERNMENT. [Art. V. 

2. The legislatures of two-thirds of the states may 
apply for a constitutional convention, in which case Con- 
gress must call one. Amendments proposed by such 
convention may be submitted by Congress to conventions 
in the several states. If conventions in three-fourths of 
the states ratify the proposed amendments, they are 
adopted. This method is like the method by which the 
Constitution was adopted in the first place. 

3. Or, Congress may submit the results of a consti- 
tutional convention to the state legislatures. 

In any case, the consent of three-fourths of the states 
is required. 

II. Restrictions on the power to amend. — 

Three restrictions are provided for, of which only one 
now remains in force. The equal representation of the 
states in the Senate cannot constitutionally be changed. 
The number of Senators from each state may be 
changed, but there must always be the same number 
from each state. This is in the interest of the small 
states still, as much as it was at first. 

In the interest of some of the slave states, it was provided 
that the slave trade should not be abolished before 1808. 

And in the interest of all the slave states, it was also pro- 
vided that slavery should not be taxed out of existence before 
the same date. 

As 1808 is long passed and slavery has been abolished, these 
two provisions are now obsolete. 

III. Disputed questions. — 1. Is the approval of the President 
necessary to a proposed amendment? Both the Supreme Court 
and Congress have decided that it is not necessary. 



MISCELLANEOUS. 281 

2. Can a state withdraw its rati fication of en amendment? Con- 
gress has decided that it cannot, and that if a state has once 
ratified an amendment, it cannot reverse that action. But if 
a state has rejected an amendment, it may afterwards adopt 
it and have its vote counted. 

3. When is an amendment, once proposed, dead? This question 
has never been decided by authority. 

4. When does an amendment become valid? When it is ratified 
by the requisite number of states. But it is the duty of the 
Secretary of State, as soon as he receives official notice from 
the requisite number of states, to publish the amendment, 
with his certificate that it is ratified. 

IV. List of amendments proposed. — The following- amend- 
ments have been proposed by Congress, the most of which 
have been adopted: 

1. The first ten amendments were proposed in 1789, and 
ratified in 1791. These were designed as a Bill of Eights. 

2. Two other amendments were proposed in 1789, but were 
not adopted. One of these was to regulate the number of 
Representatives. The other was to prevent members of Con- 
gress voting an increase of salary to themselves. 

3. The Eleventh Amendment was proposed in 1794, and rati- 
fied in 1798. 

4. The Twelfth Amendment was proposed in 1803, and rati- 
fied in 1804. This was proposed in consequence of the con- 
tested election in 1801. 

5. An amendment to prohibit citizens of the United States 
receiving titles of nobility, presents or offices from foreign 
powers, was proposed in 1811, but not ratified. 

6. An amendment to make slavery perpetual, in hopes of 
averting the civil war, was proposed in 1861, but was not rati- 
fied. 

7. The Thirteenth Amendment was proposed in 1865, and 
ratified before the close of the same year. 

8. The Fourteenth Amendment was proposed in 1866, and 
ratified in 1868. 



282 CIVIL GOVERNMENT. [Art. VI. 

9. The Fifteenth Amendment was proposed in 1869, and 
ratified in 1870. 

Note.— Those amendments which were ratified will be found in full in their 
proper place. Those which were not ratified read as follows : 

1. After the first enumeration required by the first article of the Constitu- 
tion, there shall be one Representative for every thirty thousand, until the 
number shall amount to one hundred, after which the proportion shall be so 
regulated by Congress that there shall be not less than one hundred Repre- 
sentatives, nor less than one Representative for every forty thousand persons, 
until the number of Representatives shall amount to two hundred; after 
which the proportion shall be so regulated by Congress that there shall not 
be less than two hundred Representatives, nor more than one Representative 
for every fifty thousand persons. (Proposed in 1789.) 

2. No law varying the compensation for the services of the Senators and 
Representatives shall take effect until an election of Representatives shall 
have intervened. (Proposed in 1789.) 

3. If any citizen of the United States shall accept, claim, receive or retain 
any title of nobility or honor, or snail, without the consent of Congress, ac- 
cept and retain any present, pension, office, or emolument of any kind what- 
ever, from any emperor, kine, prince, or foreign power, such person shall cease 
to be a citizen of the United States, and shall be incapable of holding any 
office of trust or profit under them or either of them. (Proposer! in 1811.) 

4. No amendment shall be made to the Constitution which will authorize 
or give to Congress the power to abolish or interfere, within any state, with 
the domestic institutions thereof, including that of persons held to labor or 
service by the laws of said state. (Proposed in 1861.) 



ARTICLE VI. 



THE CONSTITUTION THE SUPREME LAW OF 
THE LAND. 

Clause 1. — Debts and Engagements. 

All debts contracted and engagements entered into before the 
adoption of this Constitution, shall be as valid against the United 
States under this Constitution as under the Confederation. 

All debts and engagements still valid. — 

When a nation changes its form of government, it 
does not lose its identity and become another nation. It 
remains the same nation, with a different government. 
A change of government does not release a nation from 
the debts and engagements it has entered into. In such 
a case the law of nations requires the new government to 
assume the debts and fulfill the engagements of the old. 

This would therefore have been the duty of the 



MISCELLANEOUS. 283 

United States whether the clause stating this had been 
Inserted or not. 

But it was inserted to show the world that we in- 
tended to pay our debts and to live up to our treaties. 
Of course all debts and engagements due to the United 
States are also equally binding. 

Clause 2. — The Supreme Law oe the Land. 

This Constitution, and the laws of the United States which shall be 
made in pursuance thereof, and all treaties made, or which shall 
be made, under the authority of the United States, shall be the 
supreme law of the land; and the judges in every state shall be 
bound thereby, anything in the Constitution or laws of any state 
to the contrary notwithstanding:. 

I. United States law the supreme law.^- 

As we are one nation, and not a confederacy of na- 
tions, it is necessary that the national laws should be su- 
preme over state laws. If not, we should have between 
forty and fifty supreme laws instead of one, and the laws 
of the United States would be obeyed only as far as it 
suited each state to obey them. 

II. What is United States law? — United States law con- 
sists of three things: 

1. The Constitution of the United States. This may be 
amended, but while in force is always the highest law for 
the United States and every state. 

2. All laws of the United States made in pursuance of the 
Constitution. This includes all laws of the United States 
which are not unconstitutional. Only the courts can decide 
whether a law is constitutional or not, and until so decided 
as unconstitutional it must be obeyed as law. 

3. All treaties made under the authority of the United 
•States, that is by the President with the consent of two- 



284 CIVIL GOVERNMENT. [Art. VI. 

thirds of the Senate. When a treaty is made, it repeals all 
laws that are in conflict with it, as long- as the treaty lasts. 
When the treaty expires, these laws come into force again. 

These taken together constitute the supreme law of the 
land. They cease to be the supreme law in these cases: 

1. When the Constitution is amended, the part abolished by 
the amendment ceases to be law. 

2. When a statute is repealed by Congress, it ceases to be 
law. 

3. When a statute is decided, by the courts to be unconsti- 
tutional, it ceases to be law. If the decision of a lower court 
is thought to be wrong, the case may be carried up to the 
Supreme Court, whose decision is final. 

4. When a law conflicts with a treaty made after the law 
was made, the law ceases to be law. 

5. When a treaty is broken by mutual consent, is repudi- 
ated successfully by either party, or expires by its own limi- 
tation, it ceases to be law. 

6. If a revolution should occur which should destroy our 
government, the Constitution and law would practically cease 
to be law. 

III. State law as controlled by United States 

law. — 

The law of each state consists of its constitution, and 
its laws made in pursuance thereof. If this law is in 
conflict with United States law, it is null and void. The 
states cannot nullify United States law, but the United 
States can nullify state law. But this can only be done 
within the limits fixed by the Constitution of the United 
States. 

IV. State judges must decide accordingly. — 

The Constitution makes every judge of a state court 
bound to follow United States law in preference to 



MISCELLANEOUS. 285 

state law. When they come in conflict, the state law 
must yield. 

Clause 3. — Oath op Office. 

The Senators and Representatives before mentioned, and the in em- 
bers of the several state legislatures, and all executive and judi- 
cial officers, both of the United States and of the several states, 
shall be bound by oath, or affirmation, to support this Constitu- 
tion; but no religious test shall ever be required as a qualification 
to any office or public trust under the United States. 

I. Oath to support the Constitution. — 

An oath to support the Constitution of the United 
States is required of all departments of the state and na- 
tional governments. The persons required to take this 
oath are: 

1. All Senators and Representatives in Congress. 

2. All officers of the United States, executive and 
judicial. This includes military and naval officers. 

3. All members of every state legislature in each 
branch. 

4. All state officers, executive and judicial. This in- 
cludes all county, town, village and city officers. 

This oath of office must be taken in every case before 
entering upon the duties of the office. 

The form of the oath in the United States is pre- 
scribed by Congress, except that of the President, which 
is prescribed by the Constitution. (II, 2, 7.) 

The form of the oath in each state is prescribed by 
the states. All the states require also of their officers 
and legislators an oath to support the state constitution. 



286 CIVIL GOVERNMENT. [Art. VII^ 

II. No religious test for office. — 

In England, at the time this Constitution was adopted, 
no one could hold office who could not take a test oath 
which excluded all who were not members of the Church 
of England. A religious test was at that time required. 
in many states of the Union, and still is in some. 

This Constitution was in advance of the age in abol- 
ishing all religious tests for office. This is now gener- 
ally acknowledged to be wise. We do not now ask of 
any person elected or appointed to any position, "What 
is your belief?" or, "To what religious body do you be- 
long?" There is no legal hindrance to a person of any 
religion, or of no religion, holding office under the 
United States. 



ARTICLE VII. 

RATIFICATION OF THE CONSTITUTION. 

The ratification of the conventions of nine states shall be sufficient 
for the establishment of this Constitution between the states so 
ratifying the same. 

I. The manner of ratification. — 

The Constitution was to be submitted, not to the legis- 
latures of the states, but to conventions elected for that 
purpose by the people of each state. When Congress 
called this constitutional convention which prepared this 
Constitution, it expressly provided that the work of the 
convention should be submitted to Congress and to the 
state legislatures for approval by them. But the con- 



MISCELLANEOUS. 287 

vention disregarded these instructions, and submitted 
their work to popular conventions in each state. This, 
however, was done in due form, by submitting the Con- 
stitution to Congress with the request that it be sub- 
mitted to conventions called by the legislatures in each 
state, but elected by the people ; and Congress did so sub- 
mit it. The legislature of Ehode Island refused to call 
such a convention for several years, but did so in 1790. 
Rhode Island had constantly opposed the Constitution 
from the first, and had refused to send delegates to the 
convention which framed this Constitution. 

2. 'Nine states were required to ratify the Constitu- 
tion. This was two-thirds of the thirteen states. The 
Articles of Confederation required the consent of all the 
states to make any change valid. But if a unanimous 
vote had been required to adopt this Constitution in 
place of the Articles of Confederation, that vote could 
never have been secured. Rhode Island and North Car- 
olina would have stood out, and thus defeated the Con- 
stitution. The framers of the Constitution knew this 
well, and therefore made this Constitution go into effect 
when a two-thirds majority should be secured. But in 
that case the Constitution was to be established only be- 
tween the states ratifying it. 

II. Disputed questions. — 1. As the Articles of Confederation 
required the consent of all the states to any amendment to tliem, 
by what right was this constitution adopted and carried into effect 
against the uish of two of them? By the right of revolution; 
a peaceable revolution, it is true, but none the less a revolu- 



288 CIVIL GOVERNMENT. [Art. VII. 

"tion. It is to the honor of the American people that they 
were able to accomplish such a revolution and establish a 
new form of government by peaceful discussion, without the 
use of force. Such a thing- has rarely been done in the history 
of the world. 

2. What would have been done if North Carolina and Rhode 
Island had stood out and refused to ratify the Constitution? They 
would have been compelled to ratify it. The other states 
would never have allowed them to exist as independent na- 
tions within the limits of the United States. As it was, Con- 
gress passed an act laying a heavy tonnage duty on foreign 
vessels, but suspended it temporarily for Rhode Island and 
North Carolina vessels. North Carolina yielded and ratified 
the Constitution. A year later the Senate passed a bill pro- 
hibiting all commerce with Rhode Island, and demanding 
of her a sum of money as her proportion of the expenses of 
the Revolutionary War. These were steps which could mean 
nothing but war; and Rhode Island so understood them. 
Ttather than risk a war alone against the other twelve states, 
Rhode Island hastened to ratify the Constitution before the 
hill could pass the House of Representatives. Had Rhode 
Island not yielded in time, there can be no doubt that armed 
iorce would have been used to compel her. 

3. By what right could the United States have compelled re- 
luctant states to assent to the Constitution? By the right of 
self-preservation; the same right by which, at a later time, 
the United States coerced seceding states. The United States 
is a nation, and as a nation it has the inherent right to do 
whatever is necessary for self-preservation. This right is not 
given by constitutions, and is superior to all constitutions. 
It is the inalienable right of a nation; and a nation which 
cannot or will not hold its several parts together and com- 
pel their obedience to the general good of the whole does not 
deserve to be called a nation. 



fart 811. 



JStll ot IRigbts* 



THE CURSE OP THE CHARTER-BREAKERS. 



In Westminster's royal halls, 
Robed in their pontificals, 
England's ancient prelates stood 
For the people's right and good. 

Closed around the waiting crowd, 
Dark and still, like winter's cloud, 
King and council, lord and knight, 
Squire and yeoman, stood in sight ; 

Stood to hear the priest rehearse, 
In God's name, the church's curse, 
By the tapers round them lit, 
Slowly, sternly uttering it. 

Right of voice in framing laws, 
Right of peers to try each cause ; 
Peasant homestead, mean and small, 
Sacred as the monarch's hall. 

"Whoso lays his hand on these, 
England's ancient liberties — 
Whoso breaks, by word or deed, 
England's vow at Runny mede — 



"Be he prince or belted knight, 
Whatsoe'er his rank or might, 
If the highest, then the worst, 
Let him live and die accursed. 

"Thou who to thy church hast given 
Keys alike of hell and heaven, 
Make our word and witness sure, 
Let the curse we speak endure 1 " 

Silent, while that curse was said, 
Every bare and listening head 
Bowed in reverent awe, and then 
All the people said, Amen ! 

Seven times the bells have tolled, 
For the centuries gray and old, 
Since that stoled and mitred band 
Cursed the tyrants of their land ; 

Since the priesthood, like a tower, 
Stood between the poor and power ; 
And the wronged and trodden down 
Blessed the abbot's shaven crown. 
—John Greenleaf Whittier. 



Alluding to the curse of the charter-breakers, Penn says : " I am no Roman 
Catholic, and little value their other curses ; yet I declare I would not for the 
world incur this curse, as every man deservedly doth who offers violence to 
the fundamental freedom thereby repeated and confirmed." (William Penn, 
in his admirable political pamphlet, "England's Present Interest Consid- 
ered.") 



We hold these truths to be self-evident: that all men are created equal ; 
that they are endowed by their Creator with certain unalienable rights ; that 
among these are life, liberty, and the pursuit of happiness ; that to secure 
these governments are instituted among men, deriving their just powers from 
the consent of the governed ; that whenever any form of government becomes 
destructive of these ends, it is the right of the people to alter or to abolish it, 
and to institute a new government, laying its foundation on such principles,, 
and organizing its powers in such form, as to them shall seem most likely to 
effect their safety and happiness.— Declaration of Independence. 



BILL OF RIGHTS. 291 



INTRODUCTORY. 

I. The reasons for this Bill of Rights.— 

A bill of rights is a statement of those rights of citi- 
zens on which the government ought not to encroach. 
Monarchies are liable to be arbitrary, and to have little 
regard for the rights of their subjects. In England the 
people secured themselves against the tyranny of the 
king and his officers by various laws. The first of these 
was the famous Magna Charta, or Great Charter, forced 
from King John in 1215, and the last was the Bill of 
Eights, passed by Parliament in 1689, just after the 
English Revolution. This Bill of Rights was claimed 
by the colonists as English subjects, until they became 
independent of the mother country. The state consti- 
tutions already adopted before the United States Consti- 
tution contained each a bill of rights. 

II. The adoption of these amendments. — 

One of the chief objections to the original Constitu- 
tion of the United States was that it did not contain a 
bill of rights. True, there were several things in the 
Constitution which properly belong in a bill of rights. 
But it was claimed that there ought to be a complete 
bill of rights, covering many points not given in the 
Constitution. 

As the states ratified the Constitution, several of them rec- 
ommended that a bill of rights be added. When the First 



292 CIVIL GOVERNMENT. Art. I.] 

Congress met, it took into consideration these requests, and 
prepared a list of amendments to form a bill of rights. The 
House of Eepresentatives proposed seventeen amendments. 
The Senate only agreed to twelve of these, and the state legis- 
latures only ratified ten. These ten now form the first ten 
amendments of the Constitution. They were declared in 
force December 15, 1791. 

III. The need of a bill of rights. — 

Under a monarchy a bill of rights is needed, but un- 
der a republic there is not so much need of it. Still, 
a bill of rights, even under a republic, can do no harm, 
and may sometimes do good. Undoubtedly the princi- 
ples of this bill of rights would have been embodied in 
our laws, whether they were in our Constitution or not. 

Yet the tyranny of a majority over a minority may 
be as unjust as the tyranny of a despot, although less 
likely to occur; and this bill of rights is a safeguard 
against such tyranny. 

IV. The scope of this Bill of Rights.— 

These amendments were intended as limitations upon 
the government of the United States, but not upon the 
state governments. Each of the state constitutions had 
a bill of rights, designed to protect individual citizens- 
of those states from oppression by the state governments. 

This bill of rights only extends so far as the civil and 
criminal jurisdiction of the United States goes. But 
that is of no consequence, because the state constitu- 
tions also guarantee nearly all these personal rights. 

Cases may, however, arise in which this fact would be 
of consequence. Thus, the fifth amendment requires 



[Art. I. BILL OF RIGHTS. 293 

the indictment of a grand jury to hold a person for 
trial, except in cases of court martial. But the state of 
Wisconsin has returned to the old English practice of a 
preliminary examination before a justice of the peace. 
In that state, persons are usually tried without the in- 
dictment of a grand jury; and yet the United States 
Constitution is not violated, because the first eleven 
amendments were not intended as limitations on the 
state governments, but on the United States govern- 
ment. 



ARTICLE I. 



FEEEDOM OP RELIGION, OF SPEECH, AND OP 
ASSEMBLY. 

Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof; or abridging the freedom 
of speech, or of the press; or the right of the people peaceably 
to assemble, and to petition the government for a redress of 
grievances. 

I. Freedom of religion. — 

One of the worst oppressions of European govern- 
ments has been their attempt to make the people all 
adopt the religion of the government. A large part of 
the early settlers of the country fled from Europe ex- 
pressly to secure religious freedom. 

And now, in organizing the government of a new 
nation, their descendants demanded that the Constitu- 
tion should guarantee religious freedom. 

The freedom guaranteed is not freedom from religion, 



294 CIVIL GOVERNMENT. [Art. I. 

but freedom of religion. This country is a Christian 
country, in the sense that nearly all its inhabitants are 
Christians, but not in the sense that anyone is compelled 
to accept the Christian religion, or any particular form 
of it. Anyone can believe any religion, or no religion 
at all, and the law will not interfere with his faith or 
practice so long as he does not interfere with anyone's 
legal rights. 

This religious freedom, however, does not mean that 
the government of the United States is irreligious. It 
only means that it forces no religion upon the people. 
Prayer is offered at the inauguration of a President; 
each house of Congress has its chaplain, and the daily 
sessions are opened with prayer. The army and navy 
have chaplains. The President annually recommends 
Thanksgiving day to be observed. 

II. Freedom of speech and of the press. — 

In most countries, to speak or write against the gov- 
ernment is a great crime, and everyone has to be care- 
ful of what he says on political subjects. In this coun- 
try there is a complete freedom of speech and of writing 
on political subjects, and on all other subjects so far as 
the rights of others are not interfered with. 

The freedom of speech and of the press is limited by 
the rights of other people. We have no right, under 
the laws of the United States, to slander or libel, or to 
publish obscene books. But so far as our freedom does 
not injure others, we have a right to speak or write upon 
any subject. 



Art. II.] BILL OF RIGHTS. 295 

III. Freedom of assembly and petition.— 

The right of holding political meetings, and of send- 
ing petitions to Congress or to any officer of the govern- 
ment, is frequently exercised. Together with the free- 
dom of speech and of the press, it enables the people 
to influence the government constantly, as well as by 
means of the elections. Despotic governments always 
forbid or discountenance efforts to express public opinion 
by petition or public meetings. The Constitution guar- 
antees us the right to assemble for any political purpose, 
but it must be in a peaceable manner. 



ARTICLE II. 

THE EIGHT TO BEAR ARMS. 

A weU regulated militia being necessary to the security of a free 
state, the right of the people to keep and bear arms shall not be 
infringed. 

This provision is to secure the rights of citizens to 
bear arms, and to be trained in military exercises. Un- 
der it, Congress has power to make rules for the militia, 
but not to forbid the organization of the militia. Con- 
gress can only prescribe the methods under which they 
can organize (I, 8, 16). 

Under the rules prescribed by the general govern- 
ment, the states have organized a National Guard on a 
uniform system. This militia is armed and drilled, and 
is frequently summoned to suppress mob violence, and 
may be called on to defend our country against foreign 
invasion. 



296 CIVIL government. [Art. III. 



ARTICLE III. 

QUARTERING SOLDIERS. 

No soldier shall, in time of peace, be quartered in any house, with- 
out the consent of the owner; nor in time of war, but in a manner 
to be prescribed by law. 

Quartering soldiers in peace. — 

To quarter soldiers, means to give them board and 
lodging. Strictly with soldiers, board is called rations y 
and lodging quarters. But actually, when soldiers are 
quartered in a house, they have to be fed as well as 
lodged. ~No one needs to be told how annoying this 
may be to families to have rude soldiers quartered upon 
them, nor how expensive it may become if long contin- 
ued. In peace, under this article, soldiers cannot be 
quartered on the citizens without their consent, which 
is not generally given. The result is that soldiers in 
peace generally lodge in barracks built for them by the 
government, and are fed by government rations. 

But in time of war, soldiers must be moved about 
from place to place so rapidly sometimes that this can- 
not be thus provided for. In summer, they can carry 
tents with them; but in winter, it may be necessary for 
them to be quartered upon the inhabitants. But this 
must be done, not arbitrarily, but according to law. 

The "owner," whose consent must be obtained, is 
the person who lives there, whether he owns the house 
or not. 



Art. V.] BILL OF RIGHTS. 29T 



ARTICLE IV. 

UNREASONABLE SEARCHES AND SEIZURES. 

The right of the people to he secure in their persons, houses, 
papers, and effects against unreasonable searches and seizures 
shall not be violated, and no warrants shall issue, but upon prob- 
able cause, supported by oath or affirmation, and particularly 
describing the place to be searched, and the persons or things to 
be seized. 

Unreasonable searches and seizures. — 

The Constitution forbids arrests of persons, seizure of 
property or search of buildings without a legal warrant. 
And this warrant must name the particular place to be 
searched, or the particular persons to be seized. Thus, 
if property be stolen, neither the losers nor the officers 
can search a single house without a search-warrant; nor 
can they have a general warrant to search any house 
they please. The loser must make oath that he believes- 
the goods are in such a place, and on that oath the- 
search-warrant will be issued to search that place. 



ARTICLE V. 

RIGHTS OF ACCUSED PERSONS BEFORE TRIAL. 

No person shall be held to answer for a capital or otherwise infa- 
mous crime, unless on a presentment or indictment of a grand 
jury, except in cases arising in the land or naval forces, or in the 
militia, when in actual service in time of war or public danger; 
nor shall any person be subject, for the same offense, to be twice- 



298 CIVIL GOVERNMENT. [Art. V. 

put in jeopardy of life or limb; nor shall be compelled, in any- 
criminal case, to be a witness against himself, nor be deprived of 
life, liberty or property without due process of law; nor shall pri- 
vate property be taken for public use without just compensation. 

I. The object of this article. — 

The object of this amendment is to secure accused per- 
sons every chance to prove their innocence. It is 
thought better that ten guilty persons should escape 
punishment than that one innocent person should be 
punished. Therefore every possible opportunity is 
given to an accused person in the ways provided in this 
amendment and in other ways. 

II. Persons cannot be tried until indicted by a 

grand jury. — 

A capital crime is one that may be punished by death. 
An infamous crime is one that may be punished by 
death or imprisonment. A grand jury makes a pre- 
sentment against a person on their own motion, but they 
make an indictment upon the complaint of some one 
else. In either case they must have evidence enough to 
make it probable that the person presented or indicted 
is guilty of the crime with which he is charged. There 
must be some probable evidence against a person before 
he can be presented or indicted by a grand jury. The 
grand jury therefore prevents accusations being made 
that have nothing in them. It is an annoyance and dis- 
grace and expense to be tried for crime, even if not 
found guilty. The grand jury therefore prevents per- 
sons being held for trial merely to persecute them. 



Art. V.] BILL OF RIGHTS. 299 

III. Except Tinder military law. — Armies cannot be gov- 
erned by the slow processes of the courts. The army and 
navy regulations (I, 8, 14) require certain duties of soldiers 
and sailors, and prescribe certain punishments for the viola- 
tions of these regulations. These punishments are adminis- 
tered by the officers, at once, or by courts martial. All sol- 
diers and sailors in actual service are liable to be tried by 
this military law; and when the militia is called out in actual 
service, they also are subject to this military law. Soldiers 
are also responsible to the ordinary courts for any crime com- 
mitted by them. In case of actual war or insurrection, mar- 
tial law may be proclaimed in the country actually the theater 
of war. In that case the writ of habeas corpus is suspended 
(I, 9, 2), and citizens as well as soldiers may be tried and pun- 
ished by court martial. 

IV. Cannot be put in jeopardy twice for the 

same offense. — 
!N"o person can be tried twice for the same offense. 
But if the jury disagree, he can be tried before a new 
jury. That is not another trial, but the same one con- 
tinued. If a verdict of u not guilty" is given by a jury, 
the case can never be tried again. But if a person is 
found "guilty" by a jury, he has the right to appeal the 
case to a higher court. In that case, if a new trial is 
granted, he is not put in jeopardy; for if the new trial 
were not granted he would be punished, but in the new 
trial he has a chance of being acquitted. 

V. Cannot be compelled to be a witness against 

himself. — 

No accused person can be compelled to be a witness 
against himself. And, as there is no object in making 



300 CIVIL GOVERNMENT. [Art. V. 

Mm testify for himself, if lie does not wish to, an accused 
person is not obliged to testify upon his trial at all. But 
if an accused person wishes to make any statements, or 
to testify on his trial, he has the right to do so. 

VI. Cannot be deprived of life, liberty or prop- 

erty without due process of law. — 

This means that the government of the United States 
cannot lawfully deprive any person of life, liberty or 
property without some lawful process. By the four- 
teenth amendment, the same thing is forbidden to the 
states. "Due process of law" means a trial before some 
regular court, or before a court martial in cases where a . 
court martial has legal power. As this is only for sol- 
diers and sailors while in service, or for persons near 
armies that are at war, "'due process of law" means for 
almost all cases, a regular trial before a court of law. 
"No person can be arbitrarily put to death or imprisoned 
or fined. It must be for some violation of law of which 
he has been duly convicted. 

VII. Private property cannot be taken for pub- 

lic use without compensation. — 

Cases often happen where private property is taken 
for public use. Thus, if the United States needs a cer- 
tain piece of land for a fort or arsenal, the land will be 
taken whether the owner wishes to sell it or not. In 
such a case, if the price can be agreed upon between the 
owner and tho government, it is paid ; but if the owner 
asks more than the government is willing to pay, the case 



Art. VI.] BILL OP RIGHTS. 301 

is referred to a jury, who assess the value of the prop- 
erty, which is then paid. 

In case of war, the army frequently seizes provisions 
or horses, or other property, to be used at once. The 
value of this is paid by the government, if it is taken 
from loyal citizens of the United States; but if taken 
from rebels or foreign enemies, the property .seized is 
not paid for. 



ARTICLE VI. 

RIGHTS OF ACCUSED PERSONS ON TRIAL. 

In aU criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the state and dis- 
trict wherein the crime shall have been committed, which dis- 
trict shall have been previously ascertained by law, and to be in- 
formed of the nature and cause of the accusation; to be con- 
fronted with the witnesses against him; to have compulsory pro- 
cess for obtaining witnesses in his favor, and to have the assist- 
ance of counsel for his defense. 

I. A speedy and public trial. — 

When anyone is arrested on a criminal charge, he is 
held for trial, either in jail or on bail. It would be un- 
just to hold an accused person in jail for a long time. 
An accused person is therefore guaranteed a speedy trial. 
That will usually be at the next term of court. But an 
accused person often asks to have his trial put off for 
some reason. This request is generally granted. But 
if an accused person wishes a speedy trial, he can have it, 
under this article. 



302 CIVIL GOVERNMENT. [Art. VI. 

All criminal trials are public, to secure fairness in 
the trial. Records are kept by the clerk of the court; 
spectators are admitted, and newspapers often publish an 
account of the proceedings. 

II. Trial by jury of the state and district. — 

It has already been provided (III, 2, 3) that all crimes 
shall be tried by jury, and in the state in which the 
crimes were committed. This amendment provides 
further, that the trial shall be in the district in which 
the crime was committed. As all the larger states are 
^divided into two or more judicial districts, this restricts 
the court before which a crime can be tried to the dis- 
trict court for the particular district in which the crime 
was committed. This district cannot be created for the 
purpose of trying some one. It must have been previ- 
ously ascertained by law. 

The impartiality of the jury is secured (1) by care in 
selecting jurors, who, in the United States courts, are 
always men of character and position; (2) by giving 
both sides the privilege of challenging jurors, either for 
cause or peremptorily. If any cause is shown why a 
certain person would be prejudiced as a juror, he is chal- 
lenged for cause, and his name withdrawn from the list. 
Each side can also challenge a certain number per- 
emptorily, that is, without giving any reason. 

A jury always consists of twelve persons, and their 
verdict must be unanimous. A grand jury consists of 



Art. VI.] BILL, OF RIGHTS. 303 

from thirteen to twenty-four persons, and a majority can 
indict. 

III. The right to know of what he is accused. 

The warrant on which a person is arrested, and the 
indictment on which he is held for trial, both state the 
offense with which he is charged, and the time and place 
of the offense. An accused person has the right to see 
both these writs, or certified copies of them. Knowing 
exactly of what he is accused, he has an opportunty to 
prepare his defense. 

IV. The right to cross-examine the witnesses. — 

This article gives an accused person the right to be 
confronted with the witnesses against him. The object 
of this is to give him the right to cross-examine the wit- 
nesses. After they have told their story, he, or his law- 
yer for him, questions them closely, to make them con- 
tradict themselves or to bring out something in favor of 
the accused. By such an examination by both sides, the 
whole truth is much more likely to be brought out. 

V. The right to subpoena witnesses. — 

The "compulsory process for obtaining witnesses" is 
called a subpoena. Any person who knows anything of 
his own knowledge about the case may be subpoenaed as 
a witness on one side or the other, and is thus obliged to 
appear and testify at the trial. The government al- 
ready has the right to subpoena witnesses against an 



304 CIVIL GOVERNMENT. [Art. VII. 

•accused person. By this article, the accused also has 
the right to subpoena witnesses in his favor. 

VI. The right to have counsel. — 

Any accused person may, if he choose, act as his own 
lawyer. But the technicalities of the law are so many 
that even an intelligent and careful person would better 
intrust his defense to a good lawyer, much more an ig^ 
norant or a timid person. If an accused person is not 
able to employ a lawyer, the judge will appoint a lawyer 
to defend the prisoner, and the government will pay 
him. 



ARTICLE VII. 

TRIAL BY JURY IN COMMON-LAW CASES. 

In suits at common law, where the value in controversy shall ex- 
ceed twenty dollars, the right of trial hy jury shall he preserved, 
and no fact tried by a jury shall be otherwise re-examined in any 
court of the United States than according: to the rules of the com- 
mon law. 

I. The right of trial by jury in common-law 
cases. — 

The right of trial by jury in criminal cases has already 
l>een guaranteed (III, 2, 3, and Am. VI). The same 
right is now guaranteed in common-law cases, where the 
value in controversy exceeds twenty dollars. Where 
the amount in controversy is smaller, it is not worth 
while to empanel a jury. The time and expense of a 
jury trial is considerable, and it is not fair to cause that 



Art. VIII.] BILL OF RIGHTS. 305 

expense to the government, and that delay to more im- 
portant cases, for the sake of a trifling suit. 

II. Facts finally determined by a jury trial. — 

In the Constitution (III, 2, 3), the Supreme Court is 
given appellate jurisdiction both as to law and fact. 
This was meant to cover cases in equity, cases in ad- 
miralty, and maritime cases, all of which are tried by 
the court alone without a jury. But for fear it should 
be held to give the Supreme Court appellate jurisdiction 
in suits at law, both as to law and fact, this clause was 
added to the Bill of Rights. 

The common law of England is that whole body of cus- 
toms, precedents and forms which grew up in England in the 
course of English history. The American courts recognize 
this common law, so far as it is not abrogated by any express 
provision of this Constitution or of a statute. Under the 
common law all suits are tried before a judge and jury. The 
judge determines the law and the jury the facts of the case. 

The rules of common law allow only one way of re-examin- 
ing facts once tried by a jury, and that is by a new trial 
before the same court for good reasons. The law as applied 
to any case may be re-examined by a writ of error or an ap- 
peal to a higher court; but in such cases the verdict of the 
jury is held conclusive as to the facts. 



ARTICLE VIII. 

EXCESSIVE BAIL, FINES, AND PUNISHMENTS. 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

I. Excessive bail forbidden. — 

Bail is the security given that a person arrested for 

U. S. Con.— 20. 



306 CIVIL GOVERNMENT. [Art. VIII. 

any offense will appear in court and stand his trial when 
the time comes. When no bail is given, the accused 
person will be kept in jail till his trial; not to punish 
him, for he has not yet been convicted of any crime, but 
to make sure that he will be on hand to be tried. Bail 
is not allowed in capital cases, because a man who ex- 
pects to be hung will be likely to forfeit any security in 
order to escape. 

If excessive bail is required, the accused will not be 
able to furnish it, and it amounts to the same thing as 
to refuse to admit the prisoner to bail. What is excess- 
ive bail in any case, must be determined by the serious- 
ness of the offense charged and the wealth of the 
prisoner or his friends. 

II. Excessive fines forbidden. — 

Many offenses are punished by fine alone, or by fine 
and imprisonment. If excessive fines are imposed, they 
may easily amount to confiscation of the prisoner's prop- 
erty. The punishment by fine is intended to be a light 
punishment for a light offense. But an excessive 
fine may be made a very heavy punishment. The laws 
regulate the amount of fines for those offenses which are 
finable. 

III. Cruel and unusual punishments forbidden. 

Cruel and unusual punishments are understood to 
mean such punishments as whipping, branding with a 
hot iron, maiming, torturing on the rack, burning at the 
stake, breaking on the wheel, drawing and quartering. 



Art. X.] BILL OF RIGHTS. 307 

These were, until a century or two ago, inflicted every- 
where, but have now been abolished in all civilized 
countries. These are forbidden by this article. 



ARTICLE IX. 

STRICT CONSTRUCTION OF PERSONAL RIGHTS. 

The enumeration in the Constitution of certain rights shall not be 
construed to deny or disparage others retained by the people. 

It is impossible to enumerate fully all the personal 
rights which the tyranny of government might possibly 
violate, and certainly they are not all enumerated in 
the Constitution. For fear that it might be inferred 
that the government could infringe on any personal 
rights not expressly guarded by the Constitution, this 
article was inserted. 



ARTICLE X. 

LIMITED POWERS OF THE U. S. GOVERNMENT. 

The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the states, are reserved to the states re- 
spectively, or to the people. 

I. The power given to the general government. 

In the first Congress the motion was twice made to 
amend this article so that it should read, "The powers 
not expressly delegated to the United States by the 
Constitution," and was twice lost. It was pointed out 
by Madison then, that a government, to be a govern- 



308 CIVIL GOVERNMENT. [Art. X. 

ment, must have implied as well as express powers; that 
it is impossible to foresee and name in a constitution all 
the cases which will arise; and this argument prevented 
this word being inserted. 

Notwithstanding this fact, it has been the habit of lawyers and 
statesmen to quote this article with the word "expressly" in- 
serted, the very thing which its authors purposely refused to do. 
Had this been made the reading of the Constitution, we could 
never have bought Louisiana or Florida or Alaska constitution- 
ally; nor could we constitutionally have built a light-house or es- 
tablished the signal service. As it is, the United States has all 
the powers granted to it by this Constitution, and all other pow- 
ers that are fairly implied in these. All other powers are pro- 
hibited to the United States government. 

II. The reserved powers belong to the people, 
not to the states.— 

Who has these reserved powers, then? The advo- 
cates of state rights say that all rights not expressly 
given to the United States are reserved for the states. 
We have already seen the falseness of that word "ex- 
pressly." But are all the reserved powers given to the 
states? No. For in the first place we have certain 
powers expressly forbidden to the states (I, 10), some of 
which are also prohibited to the United States. And 
this article says that certain powers are reserved to the 
people. The advocates of a centralized government say 
that the government of the United States has all the 
powers needed for the general welfare, which is vague 
enough to allow any amendment of centralized power. 
Both claims are wrong. 



Art. X.] BILL OF RIGHTS. 309 

The truth is that in this country the people are the 
Source of all power. They have delegated certain pow- 
ers expressed or implied to the United States govern- 
ment by this Constitution, certain others to the state 
governments, and have reserved the rest, not to be ex- 
ercised by either till called for by the people. And, 
moreover, lest certain powers extremely liable to abuse 
should be exercised, they have expressly prohibited one 
or both governments from exercising them. 

But it does not follow that the states, any more than 
the United States, can exercise any powers not expressly 
prohibited to them. All powers not given expressly or 
by fair implication to the United States government or 
to the several state governments are held in reserve by 
the people. 

The people of the United States may grant additional 
powers to the general government, or take away some 
already granted, by an amendment to this Constitution. 
The people of any state may do the same with their 
state government, subject to the limitations of this Con- 
stitution. 



fw* am. 

Xater Hmenfcments, 



Whither leads the path 
To ampler fates that leads? 
Not down through flowery 

meads, 
To reap an aftermath 
Of youth's vainglorious weeds, 
But up the steep, amid the 
wrath 
And shock of deadly-hostile 

creeds, 
Where the world's best hope and 
stay 
By battle's flashes gropes a desperate 

way, 
And every turf the fierce foot clings-to 
bleeds. 
Peace hath her not ignoble 

wreath, 
Ere yet the sharp, decisive word 
Light the black lips of cannon, and 
the sword 
Dreams in its easeful sheath ; 
But some day the live coal behind 
the thought, 
Whether from Baal's stone ob- 
scene, 
Or from the shrine serene 
Of (rod's pure altar brought, 
Bursts up in flame ; the war of tongue 

and pen 
Learns with what deadly purpose it 

was fraught, 
And, helpless in the fiery passion 

caught, 
Shakes all the pillared state with 
shock of men : 
—James Russell Lowell. 



By the flow of the inland river, 

Whence the fleets of iron have fled, 
Where the blades of the grave-grass 
quiver, 
Asleep are the ranks of the dead ; 
Under the sod and the dew, 

Waiting the judgment day, 
Under the one, the Blue, 
Under the other, the Gray. 

These in the robings of glory, 

Those in the gloom of defeat ; 
All with the battle-blood gory, 
In the dusk of eternity meet ; 
Under the sod and the dew, 

Waiting the judgment day, 
Under the laurel, the Blue, 
Under the willow, the Gray. 

So with an equal splendor — 
The morning sun-rays fall, 
With a touch impartially tender 
On the blossoms blooming for all; 
Under the sod and the dew, 

Waiting: the judgment day, 
Broidered with gold, the Blue,. 
Mellow with gold, the Gray. 

No more shall the war-cry sever ; 

Or the winding river be red: 
They banish our anger forever, 
When they garland the graves of 
our dead. 
Under the sod and the dew, 

Waiting the judgment day, 
Love aud tears for the Blue ; 
Tears and love for the Gray. 
—Judge Francis M. Finch. 



Art. XI.] LATER AMENDMENTS. 313 



Soon after the First Congress had proposed and the 
state legislatures had ratified the first ten amendments 
as a Bill of Rights, two special occasions arose for addi- 
tional amendments. 

ARTICLE XI. 

The judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by citizens of another state, or 
by citizens or subjects of any foreign state. 

At the close of the Revolutionary War, the states, 
as well as the United States, were burdened with the 
debts incurred in that struggle, and were scarcely able 
to pay them. Article III, Section 2, of the Constitu- 
tion, gave the United States courts jurisdiction over 
controversies "'between a state and citizens of another 
state." After a time suits were begun in the Supreme 
Court (III, 2, 2) by their creditors. The Supreme 
Court decided that, under the Constitution, a state could 
be sued for a debt the same as a private person. (Chis- 
holm vs. Georgia.) 

This had not been the understanding of this clause 
when the Constitution was adopted, and the decision 
was a surprise to the people of many states. 

This decision led at once to this amendment, which 
cuts off all suits against a state by private individuals, 
those already begun as well as future suits. Most of 



314 CIVIL GOVERNMENT. [Art. XII. 

the states were not in a situation to pay their debts on 
demand, and this amendment operated as a stay-law, to 
give them time in which to pay their debts, as well as a 
bankrupt law for those which could never pay them. 

This amendment was declared in force January 8, 1798. 

The states were at once freed from the fear of any power 
which would compel them to pay their debts. A creditor of 
a state, like a creditor of the United States, must now depend 
upon the good faith of his debtor. 

Although a state cannot be sued in the United States courts 
by a private person, the parts of the state, such as counties, 
"towns, villages, or cities, can be sued, and are frequently sued, 
by private persons. If the creditor lives in the same state, 
he of course sues in the state courts. But if he does not live 
in the same state, he can sue in the United States courts. 



ARTICLE XII. 

THE ELECTION OP PRESIDENT. 

'The reason for this amendment. — 

The disputed election of 1801 showed the dangers of 

the method of electing President and Vice-President 

under the Constitution as it then stood. The twelfth 

-amendment was passed, making such changes as the 

experience of that election had shown to be necessary. 

This amendment has already been treated of in another 
-place as a substitute for Article II, Section 1, Clause 3, where 
*4he text is given. It was declared in force September 25, 1804. 



Art. XIII.] LATER AMENDMENTS. 315 



ARTICLE XIII. 

SLAVERY ABOLISHED. 

Neither slavery nor involuntary servitude, except as a punishment 
for crime, whereof the party shall have been duly convicted, shall 
exist within the United States, or any place subject to their juris- 
diction. 

Congress shall have power to enforce this article by appropriate 
legislation. 

One of the chief causes of the civil war was the 
"irrepressible conflict" between two social organizations 
so diverse as those of the free and of the slave states, 
bound together in one nation. Other causes may be 
found; such as the difference in climate, and therefore 
in the character of the inhabitants and in the nature of 
their industries ; the difference of character and ideas be- 
tween the first settlers of north and south; or the differ- 
ence in regard to state rights. But whatever effects 
these had, all clustered around the institution of sla- 
very, to attack or to defend it. Slavery was not the 
only cause of the difficulties between north and south, 
but it was certainly the chief expression of those dif- 
ficulties. Without it, the war perhaps would never have 
come, and certainly not at the time and in the way it 
did. And thus slavery came to be popularly called the 
cause of the war. It was natural that when the war 
closed with the victory of the north that slavery should 
be abolished. 



316 CIVIL GOVERNMENT. [Al't. XIV. 

The form of the thirteenth amendment is taken from Ar- 
ticle VI of the Ordinance of 1787, for the government of the 
Northwest Territory (now the states of Ohio, Indiana, Illi- 
nois, Michigan, and Wisconsin). "Any place subject to their 
jurisdiction," includes not only the states, but also the terri- 
tories, the District of Columbia, forts, arsenals and dockyards, 
United States vessels or naval stations owned by us in other 
parts of the world. 

Congress would have power to enforce this article by ap- 
propriate legislation (I, 8, 18) without the power being ex- 
pressly granted in this amendment, and this section which 
gives this power is therefore superfluous. The same thing 
can be said of the similar sections at the close of Articles XIV 
and XV. This amendment was declared in force December 
18, 1865. 



ARTICLE XIV.* 

Miscellaneous Provisions Relating to the Civil War. 
SECTION 1.— CITIZENSHIP AND ITS PRIVILEGES. 

All persons born or naturalized in the United States, and subject 
to the jurisdiction thereof, are citizens of the United States, and 
of the state wherein they reside. No state shall make or enforce 
any law which shall abridge the privileges or immunities of citi- 
zens of the United States, nor shall any state deprive any person 
of life, liberty or property without due process of law, nor deny 
to any person within its jurisdiction the equal protection of the 
laws. 

I. Citizenship denned. — 

The question of who are and who are not citizens had 
been left somewhat vague till this amendment was 
adopted. And the exact position of free negroes was in 
doubt. The thirteenth amendment had made all ne- 



*This article was declared in force July 28, 1868. 



SeC. 1.] LATER AMENDMENTS. 317 

groes free persons. This amendment now made them 
citizens. Hereafter there can be no question as to who 
are citizens of the United States. 

A citizen is a member of the body politic. 

All the citizens together make up the nation. All 
persons who are not citizens are aliens. 

A common mistake is to suppose that citizens are the 
same as voters. As a fact, most citizens are not voters, 
and not all voters are citizens. Children are not voters, 
and women are not voters in most states, but women 
and children are citizens, if otherwise qualified. And 
in about half the states men can vote who are not citi- 
zens of the United States, but who have only declared 
their intention to become citizens. The student should 
carefully distinguish between citizens and voters. 

By the fourteenth amendment citizenship is defined 
thus: 

"All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and of the state wherein they reside." 

The phrase, "and subject to the jurisdiction thereof/' 
was meant to shut out from citizenship those Indians 
who obey their tribal customs instead of the laws of the 
United States. 

There are thus two ways in which anyone may be- 
come a citizen: 

1. By birthright. 

2. By naturalization. 

A nation is like a family in this respect, for there are 



318 CIVIL GOVERNMENT. [Art. XIV. 

two ways in which a person may become a member of 
a given family — by birthright and by adoption- 
Naturalization makes anyone a citizen of a given nation 
in the same way in which adoption makes anyone a 
member of a given family. Citizens of the United 
States, then, may be either natural-born citizens or 
naturalized citizens. 

II. Natural-born citizens. — This phrase is used in Article 
II, Section 1, where it is provided that the President of the 
United States shall be a natural-born citizen. A natural-born 
citizen is not necessarily a native of the United States. Mem- 
bers of Indian tribes are natives, but are not natural-born 
citizens. And there are some natural-born citizens who are 
not natives of the United States, but were born in other coun- 
tries. There are two conditions required to make a natural- 
born citizen — parentage and place of birth. A child born of 
American parents in any place under American jurisdiction 
is unquestionably a natural-born American citizen. But 
where the parentage and birthplace do not agree, there is a 
case of doubtful citizenship which is decided by the choice 
of the person himself when he comes to years of manhood. 

Any person born of an American father, in a place subject 
to the jurisdiction of a foreign nation, may be a natural-born 
American citizen if he claims that privilege when he arrives 
at the proper age. So, also, any person born of a foreign 
father in any place subject to the jurisdiction of the United 
States may be a natural-born American citizen if he choose. 
In these doubtful cases the person may choose the country 
of his father or the country of his birth. So that a person 
may be a natural-born citizen of the United States without 
being a native of the United States. 

The places outside the United States which are subject to 
the jurisdiction of the United States are: (a) United States 
men-of-war anywhere; (&) ships bearing the American flag, 
while on the high seas, but not in a foreign port; (c) places 



SeC. 1.] LATER AMENDMENTS. 31^ 

purchased for naval stations; (d) the houses in which Ameri- 
can ambassadors in foreign lands reside. This extends also 
to the persons and families of these ambassadors and their 
subordinate officers. So that a child born to any of them in a 
foreign country is considered to be born under the jurisdic- 
tion of this country. This extends to consuls in heathen or 
Mohammedan lands, but not to consuls in Christian lands. 

So also the children of foreign ambassadors or their sub- 
ordinates born in this country are not natural-born citizens. 

III. Naturalized citizens. — Persons have been naturalized 
in each of the following ways: 

1. Under the naturalization laws of the United States. For 
this, two steps are necessary: 

(a) The foreigner who wishes to be naturalized must "de- 
clare his intention to become a citizen of the United States." 
He can do this at any time after coming to this country, 
the very day he lands if he pleases. It must be before the 
clerk of some United States or state court, who gives him a 
certificate, which is popularly called his "first papers." 

This declaration of intention is the first step to citizen- 
ship, and entitles the person taking it to certain privileges. 
It entitles him to protection in foreign countries. It en- 
titles him to take up a homestead of 160 acres of land. It 
entitles him in many states to vote, if otherwise qualified^ 
and to hold most offices. 

(6) But in order to become a full citizen he must take an- 
other step, which can only be done during a term of some 
United States or state court, and in open court. Before tak- 
ing this step, he must have resided in the United States five 
years, and it must be at least two years after he took out his 
first papers, and he must have sustained a good moral char- 
acter during that time, and been "attached to the Constitu- 
tion of the United States, and well disposed to the good order 
and happiness of the same." 

All this having been satisfactorily proved, he renounces 
all allegiance to any foreign power, and swears allegiance to 
the United States, and receives a certificate of naturalization. 



320 CIVIL GOVERNMENT. [Art. XIV. 

This completes his naturalization, and is popularly called 
"taking out his second papers." He is thus entitled to ali 
the privileges of a citizen, except being elected President or 
Vice-President. 

2. By treaty or annexation. When the United States annexed 
Texas, the citizens of that commonwealth were made citizens 
of the United States by the act of annexation by which Texas 
was made a state in the Union. The same was the case with 
every addition of territory made by treaty with France or 
Spain. Their free inhabitants, except wild Indians, became 
citizens at once. 

3. Members of Indian tribes may be made citizens by act of 
Congress, on leaving their tribal relations and coming under 
the jurisdiction of the United States. 

4. Slaves are not citizens. When the slaves in the south were 
freed, as the result of our civil war, the act that made them 
freemen made them citizens. But to make assurance doubly 
sure, the fourteenth amendment was passed, which made 
them citizens, if they were not already. 

IV. Naturalization of -women and children. — Women and 
•children may be naturalized in the following manner: — 

1. When a man is naturalized in any of the ways named 
above, it naturalizes his family also. The family which is 
naturalized consists of his wife, and his children who are 
Tinder twenty-one years old, but not of other persons who 
may be living in the family. If a foreigner has declared 
his intention to become a citizen and dies before becoming a 
citizen, his widow and minor children may go on with the 
naturalization at the proper time, in his place. 

2. If a foreigner comes to this country when he is under 
eighteen years of age, and resides here five years, he may 
take out his first and second papers at the same time; but 
he must be at least twenty-one, and must have resided here 
five years, when he is thus naturalized. 

3. A woman who is over twenty-one, and who is not married 
at the time, may be naturalized on the same conditions and 
in the same way as a man. Several women have been thus 



SeC. 1.] LATER AMENDMENTS. 321 

naturalized in order to take up and acquire titles to home- 
steads. 

4. A woman not a citizen becomes a citizen on marrying 
a citizen, and a woman who is a citizen loses her citizenship 
on marryring an alien. 

V. State citizenship. — 

Any person who answers to the above definition of a 

citizen of the United States may become a citizen of any 

state by taking np his residence in it. But he cannot 

be a citizen of two states at the same time. Nor can he 

become a citizen of any state in any other way than by 

gaining a residence within its jurisdiction. Whether a 

person has his legal residence in one state or in another, 

is a question which is sometimes hard to decide. But 

once establish the residence in a particular state, and the 

citizenship in that state follows. 

Not all citizens of the United States are citizens of any 
particular state. They may be residents of the District of 
Columbia or of a territory. Nor is it necessary that all cit- 
izens of a state should be citizens of the United States. Many 
states give the privilege of voting and holding office to per- 
sons who have merely declared their intention of becoming 
citizens. This makes them citizens of the state, but. not of 
the United States. Thus we see that citizens of the United 
States and citizens of the several states are not necessarily 
the same. A person may be one of them without being both. 

VI. Privileges and immunities of citizens.— 

As the Supreme Court of the United States has re- 
fused to enumerate these privileges, we need not expect 
to be able to give them completely. But in general 

U. S. Con.— 21. 



322 CIVIL government. [Art. XIV. 

terms we may say tliat citizens of the United States, as 
such, are entitled to the protection of the government 
in foreign lands, and to the equal benefits of the laws 
of the United States at home. Thus: 

(a) A citizen of the United States is entitled to the protec- 
tion of the United States against any unjnst treatment by 
foreign governments. 

(6) If he is of age, he may take up government land under 
the homestead act, on certain easy conditions, the chief of 
which is that he shall live on it five years, and thus have 
a farm given to him free. But a married woman cannot take 
up a homestead, because that would give two homesteads in 
the same family. An unmarried woman who is of age may 
take up a homestead on the same conditions as a man. 

(c) He is entitled to the use of the post office, the navigable 
rivers and lakes, and the mining lands, on th3 same terms as 
other citizens. 

(d) He is entitled to the equal protection of the laws of the 
United States, and also to equal punishment for violating 
those laws. It should be remembered that within the states, 
United States law has a limited scope only. 

(e) He is entitled to hold any United States office for which 
he is legally qualified, and to which he has been regularly 
elected or appointed. 

Under the fourteenth amendment, the privileges and 
immunities of citizens of the United States belong to 
all citizens of the United States, without regard to color, 
birthplace, religious opinions, party, sex, or age; and no 
state can infringe them lawfully. 

VII. Protection to life, liberty and property. — 

Our twofold system of government, United States and 
state governments, limits the privileges of citizens of 



SeC. 1.] LATER AMENDMENTS. 323 

the United States as such, and leaves a wide margin for 
oppression by the states within their own jurisdiction. 
This amendment, therefore, goes on to guarantee not 
only to the citizens of the United States, but to all per- 
sons, equal justice by the state governments. By this 
clause the United States guarantees to all persons within 
its borders, whether citizens or aliens, the inalienable 
rights named in the Declaration of Independence. "We 
hold these truths to be self-evident: that all men are 
created equal; that they are endowed by their Creator 
with certain inalienable rights; that among these are 
life, liberty, and the pursuit of happiness; that to secure 
these rights, governments are instituted among men, de- 
riving their just powers from the consent of the gov- 
erned. " 

Except in the case of the slaves, the practice of our gov- 
ernment has been in accordance with these principles. The 
great argument against the Constitution, as it was prepared 
by the convention, was that it did not sufficiently secure these 
personal rights to life, liberty, and the pursuit of happiness. 
These rights were made perfectly secure by the first ten 
amendments, as against any oppressions of the United States 
government. And at last, after slavery was abolished, these 
rights are by this amendment secured as against the op- 
pressions of the state governments, and thus the Constitu- 
tion guarantees to every person within the reach of its au- 
thority the inalienable rights to life, liberty, and property, 
and to the equal protection of the laws. To the citizens of 
the United States, it guarantees this not only in this country, 
but in foreign lands, so far as the government has power 
to protect them; to foreigners, it guarantees them so long 
as they remain within the United States. 



324 CIVIL government. [Art. XIV. 

VIII. Disputed questions. — 1. Can a state have citizens who 
are not citizens of the United States? This is left an open ques- 
tion by this section. It is probable, however, that a state has 
this power. Many states have made voters of a large num- 
ber of foreigners who have only declared their intention to 
become citizens, and, if they are voters, they must of course 
be citizens of the states; and no act of any branch of the 
United States government has ever questioned this right of 
the states. 

2. What is the status of aliens who have declared their intention 
to become citizens? They are not citizens, but they have taken 
the first step toward becoming citizens, and are therefore 
entitled to the protection of the government, but not to any 
of the special privileges of citizens. The government has 
several times protected them against injustice in foreign 
lands. 

3. Can a Chinamen be naturalized? No, he cannot be 
naturalized, as the law now stands. White men and negroes 
may be, but not Chinamen. But the children of Chinamen 
Taorn in this country are citizens under this article. 

4. Hoio can an Indian become a citizen? An Indian cannot be 
naturalized in the manner prescribed for foreigners. The 
practice has been to declare a tribe or a part of a tribe 
citizens by a special act of Congress, on their renouncing 
their tribal government. In some cases, tribes or parts of 
tribes have been again allowed, by act of Congress, to give 
up their citizenship and resume their tribal government. 

5. Does this section give women the right to vote? No, it does 
declare them citizens, which they were before, but it does 
not make them voters. Citizenship and suffrage are not 
equivalent terms. But in any state women may be made voters, 
if the state chooses, without any violation of the United States 
Constitution. The Constitution does not make women voters, 
but it does not forbid the states making them voters. 



SeC. 2.] LATER AMENDMENTS. 325 



SECTION 2.— SUFFRAGE. 

Representatives shall be apportioned among the several states ac- 
cording to their respective numbers, counting the whole number 
of persons in each state, excluding Indians not taxed. But when 
the right to vote at any election for the choice of electors for 
President and Vice-President of the United States, Representa- 
tives in Congress, the executive and judicial officers of a state, or 
the members of the legislature thereof, is denied to any of the 
male inhabitants of such state, being twenty-one years of age, 
and citizens of the United States, or in any way abridged, except 
for participation in rebellion or other crimes, the basis of repre - 
sentation therein shall be reduced in the proportion which the 
number of such male citizens shall bear to the whole number of 
male citizens twenty-one years of age in such state. 

I. Negro suffrage indirectly. — 

One part of the fourteenth amendment is an attempt 
to secure indirectly that which was secured directly by 
the fifteenth amendment — negro suffrage. The effect 
of these provisions of this amendment would have been 
to put a powerful inducement before the southern states 
to give negroes the right to vote; and the result would 
undoubtedly have been that they would have gradually 
cor ceded that right to them. But as this is secured 
directly by the fifteenth amendment, we need only con- 
sider what effect this may have in the future. 

II. The effect of this provision.— 

The effect of this provision, as things now are, is as 
follows: 

1. It changes the basis of representation from that 
given in Article I, Section 2, and makes it the whole 
population except uncivilized Indians. This had al- 
ready been practically done by abolishing slavery. 



326 CIVIL government. [Art. XIV. 

2. It is assumed that manhood suffrage shall be the 
rule — that all citizens of the United States who are of 
the male sex and twenty-one years old are voters, unless 
specially disqualified. 

3. It is established, that no state ought to abridge 
the right to vote for any cause except for participation 
in rebellion or other crime. And this extends to state 
elections as well as to United States elections. 

4. The penalty for a state thus abridging the right to 
vote is, that it shall have its representation in Congress 
proportionately reduced. If a state chooses to take this 
penalty, it may abridge the right to vote in certain ways. 
~No state has yet been deprived of a part of its represen- 
tation under this section. 

III. What powers over the suffrage are left to 
the several states. — 

Assuming that manhood suffrage of citizens of the 
United States is the standard qualification for voting, 
the states may constitutionally increase the number of 
voters as much as they please ; and they may reduce that 
number in the following ways: 

1. They may shut out rebels from the right to vote. 
After the civil war, for some time in many of the south- 
ern states those who had aided in the rebellion were 
shut out from voting. But it was found impossible 
to disfranchise permanently the most intelligent and 
wealthy people of the southland these restrictions have 
now all been removed. 

2. They may disfranchise criminals. In every state 



Sec. 3.] LATER AMENDMENTS. 327 

persons convicted of crimes are disfranchised; but they 
are frequently restored to their civil rights by a pardon. 

3. They may require an educational qualification sub- 
ject to the penalty of having their representation re- 
duced. In a few states it is required of every voter that 
he be able to read and write; but in those states the num- 
ber of illiterate persons is very small. 

4. They may require a property qualification, subject 
to the penalty of losing a part of their representation in 
Congress. If a considerable amount of property were 
required for a voter, it would reduce the number of 
voters very much, because the mass of the voters are 
men who live by their labor, and have no great amount 
of property. It is safe to say that any considerable 
property qualification will never be required of voters 
while our present form of government lasts. 

But many states require a small poll tax of each voter 
before he is allowed to vote. This is not a violation of 
this section, because no one is really prohibited from vot- 
ing as long as the amount of tax is small. 

SECTION III.— REBEL DISABILITIES. 

No person shall be a Senator or Representative in Congress, or 
elector of President and Vice-President, or hold any office, civil or 
military, under the United States or under any state, who, hav- 
ing previously taken an oath as a member of Congress, or as an 
officer of the United States, or as a member of any state legisla- 
ture, or as an executive or judicial officer of any state, to support 
the Constitution of the United States, shall have engaged in in- 
surrection or rebellion against the same, or given aid or comfort 
to the enemies thereof; but Congress may, by a vote of two-thirds 
of each house, remove such disability. 



328 CIVIL government. [Art. XIV. 

I. Political disabilities the only punishment of 

rebels in the civil war. — 

The disability to hold office provided for in this sec- 
tion is the only punishment inflicted by the United 
States upon rebels in the civil war. Every person who 
had borne arms against the government, or who had 
given aid and comfort to the rebel army or government, 
was legally guilty of treason. (Ill, 3.) This made 
nearly every white man in the seceded states a traitor, 
and liable to punishment for his treason. But not a 
single person was ever brought to trial on that charge. 
The only punishment inflicted was that prescribed in this 
section. 

II. The extent of these disabilities. — 

The extent of these disabilities is limited : 

1. !N*ot all rebels are punished, but only those who 
had previously held a position under the United States 
or any state, in which they had sworn to support the 
Constitution of the United States. Eebellion alone 
was not punished, but only rebellion joined with viola- 
tion of an official oath. 

2. The punishment is only a disability to hold office. 
It is not death, or imprisonment, or line, or even dis- 
franchisement; but only that the guilty person shall 
nOt hold office. 

3. These disabilities were only to last until Congress 
by a two-thirds vote of each house removed them. 
"Within a very few years these disabilities were removed 
from nearly all; and now the persons from whom these 



Sec. 4.] LATER AMENDMENTS. 329* 

disabilities have been removed fill most of the positions 
to which the votes of the southern states can elect them 
in the state governments and in Congress. 

No other government in the world was ever so lenient 
toward conquered rebels. It should be noted that this 
section applies to future rebellions as well as to the one 
that is past, and that Congress may not always be so- 
lenient if a new rebellion should arise in any part of our 
land. 

SECTION IV.— THE PUBLIC DEBT VERSUS THE 
REBEL DEBT. 

The validity of the public debt of the United States, authorized by 
lair, including debts incurred for payment of pensions and boun- 
ties for services in suppressing insurrection or rebellion, shall not 
be questioned. But neither the United States nor any state shall 
assume or pay any debt or obligation incurred in aid of insurrec- 
tion or rebellion against the United States, or any claim for the 
loss or emancipation of any slave; but aU such debts, obligations 
and claims shall be held illegal and void. 

The reason of this section. — 

"War is an expensive luxury, and cannot be wholly 
paid for in cash. As carried on in modern times, a great 
war always causes a great public debt. Our civil war 
was carried on so long, and on such a scale, that great 
public debts were contracted by both sides. 

No conquering power ever pays the debts of the 
beaten side, and certainly no government in the world 
ever paid the expenses incurred by rebels who were de- 
feated. On the other hand, good faith to our creditors, 
and the desire to keep our credit good, would doubtless 
make us pay our national debt without any constitu- 



330 CIVIL GOVERNMENT. [Art. XV. 

tional guarantee. But to make assurance doubly sure, 
this provision was placed in the Constitution. 

1. This section promises that the public debt of the 
United States shall never be legally questioned. In 
fact, we have been paying off our debts quite rapidly, 
and our credit is now equal to that of any nation in the 
world. 

2. It prohibits the payment by the United States, 
or by any state, of any debt incurred in support of the 
rebellion. 

3. It prohibits the payment, by either the United 
States or by any state, of any claim for the loss of 
slaves by the war, or by their being set free. The free- 
dom of the slaves was a consequence of the civil war. 
Had they been freed by peaceful legislation, they would 
doubtless have been paid for. But they were freed in 
consequence of the war undertaken by their masters, 
and the government therefore refused to pay for them. 



ARTICLE XV.* 
NEGRO SUFFRAGE. 

The right of citizens of the United States to vote shall not he de- 
nied or abridged by the United States or by any state on account 
of race, color, or previous condition of servitude. 

The Congress shall have power to enforce this article by appropri- 
ate legislation. 

The negro guaranteed the right of suffrage. — 

Tor fear that section 2 of the fourteenth amendment 
would not be enough to secure the negroes the right to 



*This amendment was declared in force March 30, 1870. 



Art. XV.] LATER AMENDMENTS. 331 

vote, this fifteenth amendment also was passed, which 
expressly provides that no person shall be deprived by 
law of the right to vote merely because he is black or 
has been a slave. A property qualification or an edu- 
cational qualification, upon all blacks and whites alike, 
would not be contrary to this article. Thus these three 
amendments each secure an essential right to the negro 
— the thirteenth, the right to freedom; the fourteenth, 
the right to citizenship; the fifteenth, the right to vote. 



332 CIVIL GOVERNMENT. 



THE AMEKICAN UNION". 

I profess, sir, in my career hitherto, to have kept steadily 
in view the prosperity and honor of the whole country, and 
the preservation of our Federal Union. It is to that union 
we owe our safety at home, and our consideration and dignity 
abroad. It is to that union that we are chiefly indebted for 
whatever makes us most proud of our country. That union 
we reached only by the discipline of our virtues in the severe 
school of adversity. It had its origin in the necessities of 
disordered finances, prostrate commerce, and ruined credit. 

Under its benign influences, these great interests immedi- 
ately awoke, as from the dead, and sprang forth with new- 
ness of life. Every year of its duration has teemed with fresh 
proofs of its utility and its blessings; and although our ter- 
ritory has stretched out wider and wider, and our popula- 
tion spread farther and farther, they have not outrun its 
protection or its benefits. It has been to lis all a copious 
fountain of national, social, personal happiness. 

I have not allowed myself, sir, to look beyond the Union, 
to see what might lie hidden in the dark recesses behind. I 
have not coolly weighed the chances of preserving liberty 
when the bonds that unite us together shall be broken asun- 
der. I have not accustomed myself to hang over the prec- 
ipice of disunion, to see whether, with my short sight, I can 
fathom the depth of the abyss below; nor could I regard him 
as a safe counselor in the affairs of this government, whose 
thoughts should be mainly bent on considering, not how 
the Union should be best preserved, but how tolerable might 
be the condition of the people when it shall be broken up and 
destroyed. While the Union lasts, we have high, exciting, 
gratifying prospects spread out before us, for us and our 
children. Beyond that I seek not to penetrate the veil. God 
grant that, in my day at least, that curtain may not rise. 
God grant that on my vision never may be opened what lies 
behind. 



THE AMERICAN UNION. 333 

When my eyes shall be turned to behold, for the last time, 
the sun in heaven, may I not see him shining on the broken 
and dishonored fragments of a once glorious Union; on states 
dissevered, discordant, belligerent; on a land rent with civil 
feuds, or drenched, it may be, in fraternal blood! Let their 
last feeble and lingering glance, rather, behold the gorgeous 
ensign of the republic, now known and honored throughout 
the earth, still full high advanced, its arms and trophies 
streaming in their original luster, not a stripe erased or pol- 
luted, not a single star obscured — bearing for its motto no 
such miserable interrogatory as, What is all this worth? nor 
those other words of delusion and folly, Liberty first, and 
Union afterward; but everywhere, spread all over in charac- 
ters of living light, blazing on all its ample folds, as they 
float over the sea and land and in every wind under the whole 
heavens, that other sentiment, dear to every true American 
heart — Liberty and Union, now and forever, one and insepar- 
able! — Daniel Webster, in the United States Senate, in 1830. 



334 CIVIL GOVERNMENT. 



THE CONSTITUTION OF THE UNITED STATES 
OF AMERICA. 

[With the exact spelling, punctuation and capitalization of the original.] 

We the People of the United States, in order to form a more perfect 
Union, establish Justice, insure domestic Tranquillity, provide for 
the common defence, promote the general Welfare, and secure the 
Blessings of Liberty to ourselves and our Posterity, do ordain and 
establish this Constitution for the United States of America. 

ARTICLE. I. 

Section. L All legislative Powers herein granted shall be vested in 
a Congress of the United States, which shall consist of a Senate and 
House of Representatives. 

Section. 2. The House of Representatives shall be composed of Mem- 
bers chosen every second year by the People of the several States, and 
the Electors in each State shall have the Qualifications requisite for 
Electors of the most numerous Branch of the State Legislature. 

No person shall be a Representative who shall not have attained to 
the Age of twenty five years, and been seven Years a Citizen of the 
United States, and who shall not, when elected, be an Inhabitant of 
that State in which he shall be chosen. 

Representatives and direct Taxes shall be apportioned among the sev- 
eral States which may be included within this Union, according to their 
respective Numbers, which shall be determined by adding to the whole 
Number of free Persons, including those bound to Service for a Term 
of Years, and excluding Indians not taxed, three fifths of all other Per- 
sons. The actual Enumeration shall be made within three Years after 
the first Meeting of the Congress of the United States, and within every 
subsequent Term of ten Years, in such Manner as they shall by Law 
direct. The Number of Representatives shall not exceed one for every 
thirty Thousand, but each State shall have at Least one Representative; 
and until such enumeration shall be made, the State of New Hampshire 
shall be entited to chuse three, Massachusetts eight, Rhode-Island and 
Providence Plantations one, Connecticut five, New- York six, New Jersey 
four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, 
North Carolina five, South Carolina five, and Georgia three. 

When vacancies happen in the Representation from any State, the Ex- 
ecutive Authority thereof shall issue Writs of Election to fill such Va- 
cancies. 

The House of Representatives shall chuse their Speaker and other 
officers; and shall have the sole Power of Impeachment. 

Section. 3. The Senate of the United States shall be composed of two 
Senators from each State, chosen by the Legislature thereof, for six 
Years; and each Senator shall have one Vote. 

Immediately after they shall be assembled in Consequence of the first 
Election, they shall be divided as equally as may be into three Classes. 
The Seats of the Senators of the first Class shall be vacated at the Ex- 
piration of the second Year, of the second Class at the Expiration of the 
fourth Year, and of the third class at the Expiration of the sixth Year, 
so that one third may be chosen every second Year; and if Vacancies 
happen by Resignation, or otherwise, during the Recess of the Legisla- 
ture of any State, the Executive thereof may make temporary Appoint- 
ments until the next Meeting of the Legislature, which shall then fill 
such Vacancies. 

No person shall be a Senator who shall not have attained to the Age 
of thirty Years, and been nine Years a citizen of the United States, and 



CONSTITUTION OF THE UNITED STATES. 335 

who shall not, when elected, be an Inhabitant of that State for which 
he shall be chosen. 

The Vice President of the United States shall be President of the 
Senate, but shall have no Vote, unless they be equally divided. 

The Senate shall chuse their other Officers, and also a President 
pro tempore, in the Absence of the Vice President, or when he shall 
exercise the Office of President of the United States. 

The Senate shall have the sole Power to try all Impeachments. 
When sitting fox that Purpose, they shall be on Oath or Affirmation. 
When the President of the United States is tried, the Chief Justice shall 
preside: And no Person shall be convicted without the Concurrence of 
two thirds of the Members present. 

Judgment in Cases of Impeachment shall not extend further than to 
removal from Office, and Disqualification to hold and enjoy any Office 
of honour, Trust or Profit under the United States: but the Party con- 
victed shall nevertheless be liable and subject to Indictment, Trial, 
Judgment and Punishment, according to Law. 

Section. 4. The Times, Places and Manner of holding Elections for 
Senators and Representatives, shall be prescribed in each State by the 
Legislature thereof; but the Congress may at any time by Law make 
or alter such Regulations, except as to the, places of chusing Senators. 

The Congress shall assemble at least once in every Year, and such 
Meeting shall be on the first Monday in December, unless they shall 
by Law appoint a different Day. 

Section. 6. Each House shall be the Judge of the Elections, Re- 
turns and Qualifications of its own Members, and a Majority of each 
shall constitute a Quorum to do Business; but a smaller Number may 
adjourn from day to day, and may be authorized to compel the Attend- 
ance of absent Members, in such Manner, and under such Penalties as 
each House may provide. 

Each House may determine the Rules of its Proceedings, punish Its 
Members for disorderly Behaviour, and, with the Concurrence of two 
thirds, expel a Member. 

Each House shall keep a Journal of its Proceedings, and from time to 
time publish the same, excepting such Parts as may in their Judgment 
require Secrecy; and the Yeas and Nays of the Members of either House 
on any question shall, at the Desire of tfne fifth of those Present, be 
entered on the Journal. 

Neither House, during the Session of Congress, shall, without the 
Consent of the other, adjourn for more than three days, nor to any 
other Place than that in which the two Houses shall be sitting. 

Section. 6. The Senators and Representatives shall receive a Com- 
pensation for their Services, to be ascertained by Law, and paid out of 
the Treasury of the United States. They shall in all Cases, except Trea- 
son, Felony and Breach of the Peace, be privileged from Arrest during 
their Attendance at the Session of their respective Houses, and in going 
to and returning from the same; and for any speech or debate in either 
House, they shall not be questioned in any other Place. 

No Senator or Representative shall, during the Time for which he 
was elected, be appointed to any civil Office under the Authority of 
the United States, which shall have been created, or the Emoluments 
whereof shall have been encreased during such time; and no Person hold- 
ing any Office under the United States, shall be a Member of either 
House during his Continuance in Office. .**..„ 

Section 7 All Bills for raising Revenue shall originate in the House 
of Representatives; but the Senate may propose or concur with Amend- 
ments as on other Bills. - 

Every Bill which shall have passed the House of Representatives and 
the Senate, shall, before it become a Law, be presented to the Presi- 
dent of the United States; If he approve he shall sign it, but if not he 
shall return it, with his Objections to that House in which it shall have 
originated who shall enter the Objections at large on their Journal, and 
proceed to reconsider it. If after such Reconsideration two thirds of 
that House shall agree to pass the Bill, it shall be sent, together with 



336 CIVIL GOVERNMENT. 

the Objections, to the other House, by which it shall likewise be recon- 
sidered, and if approved by two thirds of that House, it shall become a 
Law. But in all such cases the Votes of both Houses shall be deter- 
mined by yeas and Nays, and the Names of the Persons voting for and 
against the Bill shall be entered on the Journal of each House respec- 
tively. If any Bill shall not be returned by the President within ten 
Days (Sundays excepted) after it shall have been presented to him, the 
same shall be a law, in like Manner as if he had signed it, unless the 
Congress by their adjournment prevent its Return, in which Case it 
shall not be a Law. 

Every Order, Resolution, or Vote to which the Concurrence of the 
Senate and House of Representatives may be necessary (except on a 
question of Adjournment) shall be presented to the President of the 
United States; and before the Same shall take Effect, shall be approved 
by him, or being disapproved by him, shall be repassed by two thirds 
of the Senate and House of Representatives, according to the Rules and 
Limitations prescribed in the Case of a Bill. 

Section. 8. The Congress shall have Power 

To lay and collect Taxes. Duties, Imposts and Excises, to pay the 
Debts and provide for the common Defence and general Welfare of 
the United States; but all Duties, Imposts and Excises shall be uniform 
throughout the United States; 

To borrow Money on the credit of the United States; 

To regulate Commerce with foreign Nations, and among the several 
States, and with the Indian Tribes; 

To establish an uniform Rule of Naturalization, and uniform Laws on 
the subject of Bankruptcies throughout the United States; 

To coin Money, regulate the Value thereof, and of foreign Coin, and 
fix the Standard of Weights and Measures; 

To provide for the Punishment of counterfeiting the Securities and 
•current Coin of the United States; 

To establish Post Offices and post Roads; 

To promote the progress of Science and useful Arts, by securing for 
limited Times to Authors and Inventors the exclusive Right to their 
respective Writings and Discoveries; 

To constitute Tribunals inferior to the supreme Court; 

To define and punish Piracies and Felonies committed on the high 
Seas, and Offences against the Law of Nations; 

To declare War, grant letters of Marque and Reprisal, and make 
Rules concerning Captures on Land and Water; 

To raise and support Armies, but no Appropriation of Money to that 
Use shall be for a longer Term than two Years; 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of the land and 
naval Forces; 

To provide for calling forth the Militia to execute the Laws of the 
Union, suppress Insurrections and repel Invasions; 

To provide for organizing, arming, and disciplining, the Militia, and for 
governing such Part of them as may be employed in the Service of the 
United States, reserving to the States respectively, the Appointment of 
the Officers, and the Authority of training the Militia according to the 
Discipline prescribed by Congress; 

To exercise exclusive Legislation in all Cases whatsoever, over such 
District (not exceeding ten Miles square) as may, by Cession of particu- 
lar States, and the Acceptance of Congress, become the Seat of the Gov- 
ernment of the United States, and to exercise like Authority over all 
Places purchased by the Consent of the Legislature of the State in 
which the Same shall be, for the Erection of Forts, Magazines, Arsenals, 
Dock-Yards, and other needful Buildings;— And 

To make all Laws which shall be necessary and proper for carrying 
into Execution the foregoing Powers, and all other Powers vested by 
this Constitution in the Government of the United States, or in any 
Department or Officer thereof. 

Section. 9. The Migration or Importation of such Persons as any of 
^the States now existing shall think proper to admit, shall not be pro- 



CONSTITUTION OF TBE UNITED STATES. 337 

hibited by the Congress prior to the Year one thousand eight hundred 
and eight, but a Tax or Duty may be imposed on such Importation, not 
exceeding ten dollars for each Person. 

The Privilege of the Writ of Habeas Corpus shall not be suspended, 
unless when in Cases of Rebellion or Invasion the public Safety may 
require it. 

No Bill of Attainder or ex post facto Law shall be passed. 

No Capitation, or other direct, Tax shall be laid, unless in Proportion 
to the Census or Enumeration herein before directed to be taken. 

No Tax or Duty shall be laid on Articles exported from any State. 

No Preference shall be given by any Regulation of Commerce or Rev- 
enue to the Ports of one State over those of another: nor shall Vessels 
bound to, or from, one State, be obliged to enter, clear, or pay Duties 
in another. 

No money shall be drawn from the Treasury, but in Consequence of 
Appropriations made by Law; and a regular Statement and Account of 
the Receipts and Expenditures of all public Money shall be published 
from time to time. 

No Title of Nobility shall be granted by the United States: And no 
Person holding any Office of Profit or Trust under them, shall, without 
the Consent of the Congress, accept of any present, Emolument, Office, 
or Title, of any kind whatever, from any King, Prince, or foreign State. 

Section. 10. No State shall enter into any Treaty, Alliance, or Con- 
federation; grant Letters of Marque and Reprisal; coin Money; emit Bills 
of Credit; make any Thing but gold and silver Coin a Tender in Pay- 
ment of Debts; pass any Bill of Attainder, ex post facto Law, or Law 
impairing the Obligation of Contracts, or grant any Title of Nobility. 

No State shall, without the consent of the Congress, lay any Imposts or 
Duties on Imports or Exports, except what may be absolutely neces- 
sary for executing its inspection Laws: and the net produce of all Du- 
ties and Imposts, laid by any State on Imports or Exports, shall be for 
the Use of the Treasury of the United States; and all such Laws shall 
be subject to the Revision and Controul of the Congress. 

No State shall, without the Consent of Congress, lay any Duty of 
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any 
Agreement or Compact with another State, or with a Foreign Power, 
or engage in War, unless actually invaded, or in such imminent Dan- 
ger as will not admit of Delay. 

ARTICLE. II. 

Section. 1. The executive Power shall be vested in a President of 
the United States of America. He shall hold his Office during the Term 
of four Years, and, together with the Vice President, chosen for the 
same Term, be elected, as follows: 

Each State shall appoint, in such Manner as the Legislature thereof 
may direct, a Number of Electors, equal to the whole Number of Sen- 
ators and Representatives to which the State may be entitled in the 
Congress: but no Senator or Representative, or Person holding an Office 
of Trust or Profit under the United States, shall be appointed an Elector. 

The Electors shall meet in their respective States, and vote by Ballot 
for two Persons, of whom one at least shall not be an Inhabitant of 
the same State with themselves. And they shall make a List of all the 
Persons voted for, and of the Number of Votes for each; which List 
they shall sign and certify, and transmit sealed to the Seat of the Gov- 
ernment of the United States, directed to the President of the Senate. 
The President of the Senate shall, in the Presence of the Senate and 
House of Representatives, open all the Certificates, and the Votes shall 
then be counted. The Person having the greatest Number of Votes 
shall be the President, if such Number be a Majority of the whole Num- 
ber of Electors appointed; and if there be more than one who have such 
Majority and have an equal number of Votes, then the House of Rep- 
resentatives shall immediately chuse by Ballot one of them for Presi- 
dent; and if no Person have a Majority, then from the five highest on 



338 CIVIL GOVERNMENT. 

the List the said House shall in like manner chuse the President. But 
in chusing the President, the Votes shall be taken by States, the Rep- 
resentation from each State having one Vote; a Quorum for this Pur- 
pose sball consist of a Member or Members from two thirds of the- 
States, and a Majority of all the States shall be necessary to a choice. 
In every Case, after the Choice of the President, the Person having the 
greatest Number of Votes of the Electors shall be the Vice President. 
But if there should remain two or more who have equal Votes, the 
Senate shall chuse from them by Ballot the Vice President. 

The Congress may determine the Time of chusing the Electors, and 
• the Day on which they shall give their Votes; which Day shall be 
the same throughout tbe United States. 

No Person except a natural born Citizen, or a Citizen of the United 
States, at the time of the Adoption of this Constitution, shall be eligi- 
ble to the Office of President; neither shall any Person be eligible to 
that Office who shall not have attained to the Age of thirty five Years, 
and been fourteen Years a Resident within the United States. 

In Case of the Removal of the President from Office, or of his Deaths 
Resignation, or Inability to discharge the Powers and Duties of the said 
office, the same shall devolve on the Vice President, and the Congress 
may by Law provide for the Case of Removal, Death, Resignation, or 
Inability, both of the President and Vice President, declaring what Of- 
ficer shall then aet as President, and such Officer shall act accordingly, 
until the Disability be removed, or a President shall be elected. 

The President shall, at stated Times, receive for his services, a Com- 
pensation, which shall neither be encreased nor diminished during the 
Period for which he shall have been elected, and he shall not receive 
within that Period any other Emolument from the United States, or 
any of them. 

Before he enter on the Execution of his Office, he shall take the fol- 
lowing Oath or Affirmation:— 

"I do solemnly swear (or affirm) that I will faithfully execute the 
"Office of President of the United States, and will to the best of my 
"Ability, preserve, protect and defend the Constitution of the United 
"States." 

Section. 2. The President shall be Commander in Chief of the Army 
and Navy of the United States, and of the Militia of the several States, 
when called into the actual Service of the United States; he may re- 
quire the Opinion, in writing, of the principal Officer in each of the 
executive Departments, upon any Subject relating to the Duties of their 
respective Offices, and he shall have Power to grant Reprieves and Par- 
dons for Offences against the United States, except in Cases of Im- 
peachment. 

He shall have Power, by and with the Advice and Consent of the 
Senate, to make Treaties, provided two thirds of the Senators present 
concur; and he shall nominate, and by and with the Advice and Consent 
of the Senate, shall appoint Ambassadors, other public Ministers and 
Consuls, Judges of the supreme Court, and all other Officers of the 
United States, whose Appointments are not herein otherwise provided 
for. and which shall be established by law: but the Congress may by 
Law vest the Appointment of such inferior Officers, as they think 
proper, in the President alone, in the Courts of Law, or in the Heads 
of Departments. 

Tbe President shall have Power to fill up all Vacancies that may 
happen during the Recess of the Senate, by granting Commissions which 
shall expire at the End of their next Session. 

Section. 3- He shall from time to time give to the Congress Infor- 
mation of the State of the Union, and recommend to their Consider- 
ation such Measures as he shall judge necessary and expedient; he 
may, on extraordinary Occasions, convene both Houses, or either of 
them, and in Case of Disagreement between them, with Respect to the- 
time of Adjournment, he may adjourn them to such Time as he shall 
think proper; he shall receive Ambassadors and other public Ministers; 
he shall take Care that the Laws be faithfully executed, and shalL 
Commission all the officers of the United States. 



CONSTITUTION OP THE UNITED STATES. 339 

Section. 4. The President, Vice President and all civil Officers of 
the United States, shall he removed from Office on Impeachment for, 
and Conviction of, Treason, Bribery, or other high Crimes and Misde- 
meanors. 

ARTICLE. III. 

Section. 1. The Judicial Power of the United States, shall be vested 
in one supreme Court, and in such inferior Courts as the Congress may 
from time to time ordain and establish. The Judges, both of the su- 
preme and inferior Courts, shall hold their Offices during good Behavior, 
and shall, at stated Times, receive for their Services, a Compensation 
which shall not be diminished during their Continuance in Office. 

Section. 2. The Judicial Power shall extend to all Cases, in Law 
and Equity, arising under this Constitution, the Laws of the United 
States, and Treaties made, or which shall be made, under their Au- 
thority; — to all Cases affecting Ambassadors, other public Ministers and 
Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Con- 
troversies to which the United States shall be a Party; — to Controver- 
sies between two or more States, — between a State and Citizens of an- 
other State;— between Citizens of different States ,— between Citizens of 
the same state claiming Lands under Grants of different States, and be- 
tween a State, or the Citizens thereof, and foreign States, Citizens or 
Subjects. 

In all Cases affecting Ambassadors, other public Ministers and Con- 
suls, and those in which a State shall be Party, the supreme Court 
shall have original Jurisdiction. In all the other Cases before mentioned, 
the supreme Court shall have appellate Jurisdiction, both as to Law 
and Fact, with such Exceptions, and under such Regulations as the 
Congress shali make. 

The Trial of all Crimes, except in Cases of Impeachment, shall be by 
Jury; and such Trial shall be held in the State where the said Crimes 
shal'l have been committed; but when not committed within any State, 
the Trial shall be at such Place or Places as the Congress may by Law 
have directed. 

Section. 3. Treason against the United States, shalil consist only in 
levying War against them, or in adhering to their Enemies, giving them 
Aid and Comfort. No Person shall be convicted of Treason unless on 
the Testimony of two Witnesses to the same overt Act, or on Confes- 
sion in open Court. 

The Congress shall have Power to declare the Punishment of Treason, 
but no Attainder of Treason shall work Corruption of Blood, or For- 
feiture except during the Life of the Person attainted. 

ARTICLE. IV. 

Section. 1. Full Faith and Credit shall be given in each State to the 
public Acts, Records, and judicial Proceedings of every other State. 
And the Congress mav by general Laws prescribe the Manner in which 
such Acts, Records, and Proceedings shall be proved, and the Effect 
thereof. 

Section. 2. The Citizens of each State shall be entitled to all Privi- 
leges and Immunities of Citizens in the several States. 

A Person charged in any State with Treason, Felony, or other Crime 
who shall flee from Justice, and be found in another State, shall on 
Demand of the executive Authority of the State from which he fled 
be delivered np, to be removed to the State having Jurisdiction of the 
Crime. 

No Person heQd to Service or Labour in one State, under the Laws 
thereof, escaping into another, shall, in Consequence of any Law or 
Regulation therein, be discharged from such Service or Labour but 
shall be delivered up on Claim of the PaTty to whom such Service or 
Labour may be due. 



340 CIVIL GOVERNMENT. 

Section. 3. New States may be admitted by the Congress into this 
Union; but no new State shall be formed or erected within the Juris- 
diction of any other State; nor any State be formed by the Junction 
of two or more States, or Parts of States, without the Consent of the 
Legislatures of the States concerned as we'll as of the Congress. 

The Congress shall have Power to dispose of and make all needful 
Rules and Regulations respecting the Territory or other Property be- 
longing to the United States; and nothing in this Constitution shaM be 
so construed as to Prejudice any Claims of the United States, or of 
any particular State. 

Section. 4. The United States shall guarantee to every State in this 
Union a Republican Form of Government, and shall protect each of 
them against Invasion, and on Application of the Legisiature, or of the 
Executive (when the Legislature cannot be convened) against domestic 
Violence. 

ARTICLE. V. 

The Congress, whenever two thirds of both Houses shall deem it nec- 
essary, shall propose Amendments to this Constitution, or, on the Appli- 
cation of the Legislatures of two thirds of the several States, shall call a 
Convention for proposing Amendments, which, in either Case, shall be 
valid to all Intents and Purposes, as Part of this Constitution, when 
ratified by the Legislatures of three fourths of the several States, or by 
Conventions in three fourths thereof, as the one or the other Mode of 
Ratification may be proposed by the Congress; Provided that no Amend- 
ment which may be made prior to the Year one thousand eight hundred 
and eight shall in any Manner affect the first and fourth Clauses in the 
Ninth Section of the first Article; and that no State, without its Consent, 
shall be deprived of its equal Suffrage in the Senate. 

ARTICLE. VI. 

All Debts contracted and Engagements entered into, before the Adop- 
tion of this Constitution, shall be as valid against the United States un- 
der this Constitution as under the Confederation. 

This Constitution, and the Laws of the United States which shall be 
made in Pursuance thereof; and all Treaties made, or which shall be 
made, under the authority of the United States, shall be the supreme 
Law of the Land; and. the Judges in every State shall be bound thereby, 
any Thing in the Constitution or Laws of any State to the Contrary 
notwithstanding. 

The Senators and Representatives before mentioned, and the Members 
of the several State Legislatures, and all executive and judicial Officers, 
both of the United States and of the several States, shall be bound by 
Oath or Affirmation, to support this Constitution; but no religious Test 
shall ever be required as a Qualification to any Office or public Trust 
under the United States. 

ARTICLE. VII. 

The Ratification of the Conventions of nine States, shall be sufficient 
for the establishment of this Constitution between the States so ratify- 
ing the Same. 

Done in Convention by the Unanimous Consent of the States present 
the Seventeenth Day of September in the Year of our Lord one thous- 
and seven hundred and Eighty seven and of the Independence of the 
United States of America the Twelfth. In Witness whereof We have 
hereunto subscribed our Names, 

Go WASHINGTON, 

Presidt and deputy from Virginia 
And 38 others, representing all the states except Rhode Island. 



AMENDMENTS. 341 



AMENDMENTS. 

(ARTICLE I.) 

Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof; or abridging the freedom of 
speech, or of the press; or the right of the people peaceably to assemble, 
and to petition the Government for a redress of grievances. 

(ARTICLE II.) 

A well regulated Militia, being necessary to the security of a free 
State, the right of the people to keep and bear Arms, shall not be in- 
fringed. 

(ARTICLE III.) 

No Soldier shall, in time of peace be quartered in any house, without 
the consent of the Owner, nor in time of war, but in a manner to be 
prescribed by law. 

(ARTICLE IV.) 

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be vio- 
lated, and no Warrants shall issue, but upon probable cause, supported 
by Oath or affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized. 

(ARTICLE V.) 

No person shall be held to answer for a capital, or otherwise infamous 
crime, unless on a presentment or indictment of a Grand Jury, except 
in cases arising in the land or naval forces, or in the Militia, when in 
actual service in time of War or public danger; nor shall any person 
be subject for the same offence to be twice put in jeopardy of life or 
limb; nor shall be compelled in any Criminal Case to be a witness against 
himself, nor be deprived of life, liberty, or property, without due 
process of law; nor shall private property be taken for public use, with- 
out just compensation. 

(ARTICLE VI.) 

In a-11 criminal prosecutions, the accused shall enjoy the right to 
a speedy and public trial, by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall 
have been previously ascertained by law, and to be informed of the 
nature and cause of the accusation; to be confronted with the witnesses 
against him; to have Compulsory process for obtaining Witnesses in his 
favour, and to have the Assistance of Counsel for his defence. 

(ARTICLE VII.) 

In Suits at common law. where the value in controversy shall ex- 
ceed twenty dollars, the right of trial by jury shall be preserved, and 
no fact tried by a jury shall be otherwise re-examined in any Court of 
the United States, than according to the rules of the common law. 



342 CIVIL GOVERNMENT. 



(ARTICLE VIII.) 



Excessive bail shall not be required, nor excessive fines imposed, 
cruel and unusual punishments inflicted. 



(ARTICLE IX.) 

The enumeration in the Constitution, of certain rights, shall not be 
construed to deny or disparage others retained by the people. 



(ARTICLE X.) 

The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respectively, 
or to the people. 

(ARTICLE XI.) 

The Judicial power of the United States shall not be construed to ex- 
tend to any suit in law or equity, commenced or prosecuted against one 
of the United States by Citizens of another State, or by Citizens or 
Subjects of any Foreign State. 



(ARTICLE XII.) 

The Electors shall meet in their respective states, and vote by ballot 
for President and Vice-President, one of whom, at least, shall not be 
an inhabitant of the same state with themselves; they shall name in 
their ballots the person voted for as President, and in distinct ballots 
the person voted for as Vice-President, and they shall make distinct lists 
of all persons voted for as President, and of all persons voted for as 
Vice-President, and of the number of votes for each, which lists they shall 
sign and certify, and transmit sealed to the seat of the government of the 
United States, directed to the President of the Senate ;— The President of the 
Senate shall, in presence of the Senate and House of Representatives, 
open all the certificates and the votes shall then be counted;— The person 
having the greatest number of votes for President, shall be the President, 
if such number be a majority of the whole number of Electors ap- 
pointed; and if no person have such majority, then from the persons 
having the highest numbers not exceeding three on the list of those 
voted for as President, the House of Representatives shall choose im- 
mediately, by ballot, the President. But in choosing the President, the 
votes shall be taken by states, the representation from each state hav- 
ing one vote; a quorum for this purpose shall consist of a member or 
members from two-thirds of the states, and a majority of all the states 
shall be necessary to a choice. And if the House of Representatives 
shall not choose a President wheneve'r the right of choice shall devolve 
upon them, before the fourth day of March next following, then the 
Vice-President shall act as President, as in the case of the death or 
other constitutional disability of the President.— The person having the 
greatest number of votes as Vice-President, shall be the Vice-President, 
if such number be a majority of the whole number of Electors appointed, 
and if no person have a majority, then from the two highest numbers 
on the list, the Senate shall choose the Vice-President; a quorum for the 
purpose shall consist of two-thirds of the whole number of Senators, 
and a majority of the whole number shall be necessary to a choice. 
But no person constitutionally ineligible to the office of President shall 
be eligible to that of Vice-President of the United States. 



AMENDMENTS. 343 



(ARTICLE XIII.) 

Section 1. Neither slavery nor involuntary servitude, except as a 
(punishment for crime whereof the party shall have been duly convicted, 
shall exist within the United States, or any place subject to their juris- 
diction. 

Sect. 2. Congress shall have power to enforce this article by ap- 
propriate legislation. 

(ARTICLE XIV.) 

Section 1. All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United States, and 
of the State wherein they reside. No State shall make or enforce any 
law which shall abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of life, liberty, or 
property without due process of law, nor deny to any person within its 
jurisdiction the equal protection of the laws. 

Sect. 2. Representatives shall be apportioned among the several 
States, according to their respective numbers, counting the whole num- 
ber of persons in each State, excluding Indians not taxed. But when 
the right to vote at any election for the choice of electors for president 
and vice-president of the United States, representatives in Congress, the 
executive and judicial officers of a State, or the members of the legis- 
lature thereof, is denied to any of the male inhabitants of such State, 
being twenty-one years of age, and citizens of the United States, or in 
any way abridged, except for participation in rebellion or other crimes, 
the basis of representation shall be reduced in the proportion which the 
number of such male citizens shall bear to the whole number of male 
citizens, twenty-one years of age, in such State. 

Sect. 3. No person shall be a senator or representative in Congress, 
•or elector of president or vice-president, or hold any office, civil or 
military, under the United States or under any State, who having pre- 
viously taken an oath as a member of Congress, or as an officer of the 
United States, or as a member of any State legislature, or as an execu- 
tive or judicial officer of any State, to support the Constitution of the 
United States, shall have engaged in insurrection or rebellion against 
the same, or given aid or comfort to the enemies thereof. But Con- 
gress may by a vote of two-tbirds of each house remove such disability. 

Sect. 4. The validity of the public debt of the United States, au- 
thorized by law, including debts incurred for payment of pensions and 
bounties for services in suppressing insurrection or rebellion, shall not 
be questioned. But neither the United States, nor any State, shall as- 
sume or pay any debt or obligation incurred in aid of insurrection or re- 
bellion against the United States, or any claim for the loss or emanci- 
pation of any slave; but all such debts, obligations, and claims shall 
be held illegal and void. 

Sect. 5. The Congress shall have power to enforce by appropriate 
legislation the provisions of this article. 

(ARTICLE XV.) 

Section 1. The right of citizens of the United States to vote shall 
not be denied or abridged Dy the United States, or by any State, on 
account of race, color, or previous condition of servitude. 

Sect. 2. The Congress shall have power to enforce this article by ap- 
propriate legislation. 



INDEX. 



A. 

PAGE. 

Acclamation, vote by 92 

Accused persons, rights of 297-307 

Accused, of what, right to know. .. 303 

Adjournment 94 

Administrative departments, in 

states 222 

Admiralty and maritime jurisdic- 
tion 244 

Agreements of states 166 

Aliens, who have declared intention 324 

Alliances of states prohibited 158 

Ambassadors, reception of 215 

cases affecting 243 

Amendment of Constitution — 279-282 

Amendments, first ten added 39 

Amendments, first ten, see Bill of 
Rights. 

Amendments, later 311-331 

Appointing power 207, 211 

Apportionment of representation, 

a new principle 58 

Appropriations and accounts 155 

Aristocracy defined 3 

Arms, right to bear 295 

Army, states not to keep 165 

Army, the regular 134 

Arrest, privilege from 96 

Assembly, freedom of 295 

Attainder, bills of 151, 161 

Attainder of treason 255 

Ayes and noes 92 

B. 

Bail, excessive 305 

Bankruptcy 125 

Bill of Rights 289-309 

reasons for 291 

adoption of 39, 291 

scope of 292 

the English 18,291 

Bills, which must originate in House 99 

may become laws, how 100 

Bills of credit 160 

Bonds, government 120 

Borrow, the power to 119 



Cabinet government, English — 178 
Cabinet officers, should they sit in 
Congress 98 



PAGE. 

Cabinet, the President's 203 

Cases in law and equity 240 

under the Constitution, laws 

and treaties 241 

Caucuses 66, 225 

Census, the 59 

Cessions of territory by states 272 

Charters of corporations 161 

Chinamen cannot be naturalized . . 324 

Circuit courts 236 

Circuit courts of appeals 236 

Citizens, privileges of 264, 321 

who are 316 

natural born 318 

naturalized 319 

Citizenship of Representatives 53 

of Senators 74 

of President 195 

City government 171, 174 

Civil service, the 210 

Claims, court of 236 

Claims of territory by states 272 

Coinage 126, 150 

Colonial governments 20 

Commander-in-chief 201 

Commissioning officers 217 

Common law 241, 305 

Commons, House of 16 

Commerce, power over 121 

with foreign nations. .. 122 

between the states 123 

with Indian tribes 124 

Commercial restrictions forbidden 154 

power, need of 27 

Committee of the whole, discuss 

Constitution 29 

on detail, shape Consti- 
tution 32 

on style 33 

Committees of Senate and House. 76 

Compacts of states 166 

Confederation, defects of 9 

Confederacy, the United States not 

a 11 

Congress, organization of 43-109 

name 47 

are two houses best 48 

elections and sessions 

of 78-81 

meeting of 83 

powers of each house 

separately 84-94 

contested elections to... 85 
acts not submitted to 
President 103 



346 



INDEX. 



PAGE. 

•Congress, the President may con- 
vene 214 

the President may ad- 
journ 215 

Congressmen, duties of 98 

Connecticut compromise, the 31 

Connecticut ratifies 35 

Constitution, objects of 8 

compared with Ar- 
ticles of Confedera- 
tion 9 

sources of 12 

what is a 12 

English history of . . 13-20 
makes a national 

government 24 

signed 32 

ratified 33-39 

opposition of Con- 
gress to 34 

influence and growth 

of 40-42 

effect of, on Europe . 40 

the unwritten 41 

the supreme law of 

the laud 282 

amendment of 279-282 

ratification of 286 

Constitutions, the first state 22 

the second state — 23 
Constitutional convention, events 

leading up to 25-28 

history of 29-33 

Constitutionality of laws 234 

Contested elections to Congress... 85 
Contracts, laws impairing the ob- 
ligation of — 161 

Controversies to which the United 

States is a party 244 

between the states . . 245 
between a state and 
citizens of another 

state 246 

between citizens of 

different states 246 

about land grants of 

different states.... 247 
between a state or 
citizens and for- 
eign states and 

subjects 248 

■ Convention, Hartford 26 

for Constitution called 28 

Constitutional 28-33 

Conventions, Congressional 65 

mass 68 

national 225 

Copyrights 129 

Corruption of blood 255 

Counsel, the right to have 304 

Counterfeiting 127 

County government 170, 172 

Courts, see Judiciary and Juris- 
diction. 

Courts, United States 130 

•Crimes at sea 131 



PAGE. 

Crimes, trial of 250 

Criminals, fugitive 264 

Cross-examine witnesses, right 
to 303 

D. 

Debate, freedom of 96 

Debt, the public 119, 329 

Debt, rebel 329 

Delaware ratifies 35 

Democracy defined 4 

Democratic movement under Jack- 
son 41 

Departments, executive 202 

Departments of government, three 45 

D ilatory motions 93 

Direct legislation by the people — 107 

Direct taxes 117, 152 

Districts, Congressional 60 

District courts, United States 236 

District of Columbia 139 

supreme court 236 

Duties on imports 117, 164 

Duties of Congressmen 98 

E. 

Elections to Congress 78-30, 85 

Enacting clause 3-42 

Equity 240 

Execution of the laws 217 

Executive department 177-229 

carries out the laws 177 

independent of the leg- 
islature 177 

one man 179 

responsible to the peo- 
ple 179 

officers all agents of the 

President 181 

departments 202 

(See also President.) 

Executives, state 221 

Export duties 153, 164 

Ex post facto laws 152, 161 

Extradition laws 264 

F. 

Federal idea, original in our Con- 
stitution 40 

Federalist, pamphlets by Madison 

and others 34 

Felonies, on the high seas 131 

Fines, excessive 306 

Foreign titles, offices and presents. 156 

Forfeiture for treason 256 

Forts, navy yards and arsenals — 141 
France, Constitution published in 40 

Freedom of debate in Congress 96 

Freedom of religion, speech and 

assembly 293 

Fugitive criminals 264 

slaves 266 



INDEX. 



347 



G. 

PAGE. 

Georgia ratifies 35 

Gerry ma tide ring . . . 61 

Government organized under Con- 
stitution , 39 

Government, local 170 

Governors, state 221 

Growth, of United States 62 

H. 

Habeas corpus 150 

Hartford convention 26 

Hamilton's plan for Constitution. 31 
Henry, Patrick, opposes Constitu- 
tion 36 



I. 



Impeachment by House of Repre- 
sentatives 64 

tried by Senate 77 

trials, table of 220 

who liable to 218 

for what 219 

Import duties 117, 161 

Inauguration of President 194, 200 

Incidental powers 142 

Indictment by grand jury 298 

Inhabitancy of Representatives in 

state 54 

of Senators in state. 74 
not the same as resi- 
dence 56 

Initiative, the 108 

Internal revenue 118 

International law, offenses against 132 
Inter-State Commerce act 124 



J. 



Jefferson's letter on the Constitu- 
tion 33 

Jeopardy, not twice for same of- 
fense 299 

Joint resolutions 103 

Journal of each House 91 

Judges, term of office 238 

salary 238 

Judiciary department, the 231-260 

defines and interprets 

.law 233 

decides constitutionality 

of laws 234 

in what courts vested... 235 

state systems of 257 

Jurisdictions, the two 7 

Jurisdiction of courts 239 

original and appellate 249 
of states, concurrent. 265 

Jury, trial by 250, 302, 304 

grand 298 



L. 

PAGE. 

Law, cases in 240 

common 241 

Laws, process of making 99 

Lee, Richard Henry, opposed to 

Constitution 34 

Legal tender 160 

Legislation, powers of 111-174 

exclusive 139 

prohibitions on na- 
tional 149-158 

prohibitions on state 

158-168 

direct by the people . . 107 

state and local 169 

Legislatures, state 105-109 

Life or liberty, cannot be deprived 

of 300,322 

Local government 170 

Local self-government and national 

unity 6 

Lords, House of 16 



M. 

Madison says ratification must be 

unconditional 38 

Magna Charta 14 

Marque, letters of 133, 159 

Maryland ratifies 33 

Massachusetts ratifies 36 

Message„President's 213 

]V1 ilitary law 299 

Militia, power to call out 137 

power to organize 138 

right to bear arms 295 

Monarchy defined 6 

Montesquieu, favors division of 

governmental power 47 

Morris, Gouverneur 33 

Municipal self-government 8 



N. 

National conventions 223 

Nations, law of 132 

Naturalization 125, 319 

Navy, the 135 

states not to keep 165 

Negro suffrage 330 

New Hampshire ratifies 37 

New Jersey ratifies 35 

plan for Constitution. 30 

New York ratifies 37 

Nomination of representatives 65 

of officers, state and 
local 67 

of President 223 

Norman conquest 13 

North Carolina ratifies 38, 288 



348 



INDEX. 



o. 

PAGE. 

Oath of office of President 199 

of officers, state and 

national . . • 285 

Objects of Constitution 8 

Office, no religious test for 285 

tenure of 210 

Officers, term of 210 

Officers of courts 237 

Officers of House of Representa- 

tive 64 

Officers of the Senate 75 

state 222 

Organization of Congress 83 



P. 



Paine, Thomas, proposes national 

charter 25 

Paper money 160 

Pardoning power 201 

Parliament, the first 15 

becomes a power , 18 

absorbs executive 

power 19 

compared with Con- 
gress 82 

Party organization 68 

Patents 129 

Pennsylvania ratifies 35 

People, the source of power 4 

Personal rights, strict construction 

of 307 

Petition, freedom of 295 

Pinckney's plan for Constitution.. 31 

Piracy 131 

Pocketing a bill 102 

Popular government best 5 

Post offices and post roads 128 

Powers of each house separately. . . 84 
of each house to punish 

members 88 

of each house to punish 

others 89 

of legislation 111-174 

of members 94-99 

of Congress, are legislative 

powers 113 

of Congress, can not all be 

enumerated 114 

of Congress, incidental 142 

of United States govern- 
ment limited 307 

reserved , belong to the peo- 
ple 308 

President, election of 32 

veto power 101 

Congressional acts which 
need not be submitted 

to 103 

term of office 182 

re-election of 183 

elected indirectly 184 

election by electors 187 

counting the votes for.. 189 



PAGE. 

President, election by House of 

Representatives 190 

old method of electing. 192 
doubtful election of 1876 192 

time of elections 193 

inauguration of — 194,200 

qualifications of 194 

vacancies, how filled 196 

salary 199 

oath of office 199 

powers of 201-218 

nomination of 223 

Presidential electors 184 

Press, freedom of 294 

Previous question 93 

Primary elections 66 

Privilege from arrest 96 

Privileges and immunities of citi- 

I zens 321 

Privateering 133 

Prizes on land and sea 134 

Process of law, due 300 

Prohibitions on national legisla- 
tion 149-158 

Prohibitions on state legislation 158-168 
Property cannot be taken without 

compensation 300 

Protection to life, etc 323 

Publicity of proceedings 90 

Punishments, cruel and unusual.. 306 
Purse, power of 15 



Q. 



Quartering soldiers 

Quorum 

power of a less number. 

R. 



87 



Railroads 124,162 

Randolph, refuses to sign Consti- 
tution 32 

Ratification of the Constitution. 33, 286 

Rebel disabilities 327 

Rebel debt 329 

Referendum, the 108 

Regulations, army and navy 136 

Relations of states 261-267 

Religion, freedom of 293 

Removal from office 211 

Reports of department 204 

Representatives, House of 49-69 

chosen by people. 49 

for short term 50 

states determine 
who shall vote 

for 50 

should vote as con- 
stituents wish.. 51 
qualifications of. 53 
apportioned to 

the states 57 

number of 60 

sole powers of. . 63-65 



INDEX. 



349 



PAGE. 


■■-■■% 

PAGE. 


Representatives, nomination of... 


65 


States, cannot be sued 313 


election of 


8U 


Suffrage 325, 326 


Reprisal, letters of 133, 


159 


negro 330 


Republic, the United States a — 


3 


Supreme court of U. S 235, 249 


Republican form of government 




of District of Co- 


guaranteed 


276 


lumbia 236 


Resolutions, joint 


103 


Switzerland, imitates our Consti- 




97 




Revenue, lack of, under Confeder- 




acy 

Revenue, internal 


2b 
118 


T. 


Revenue bills, originate where 


99 






17 




Rights, Bill of 


18 
288 


Tariff 117 


Rhode Island forced to ratify.. .38, 


Taxation, same basis as represen- 


Rules, power of each house to 




tation 62 


make 


88 


power of 114 

by states 113 


s. 




methods of 116 




uniformity of 118 






objects of 119 




M4 


Taxes direct 116 152 


Searches, unreasonable 


297 
297 




Seizures, unreasonable 


courts 236 




governments 271 


represents the states 


70 


Territories, power to acquire 270 


states have equal repre- 




power to govern 271 


sentation in 


71 


Territory, claims and cessions by 


president of 


74 


States 272 




75 


acquired since Revolu- 
tion 274 


power in appointments . . 
high court impeachment 


207 


77 


Titles of nobility forbidden 156, 163 


power over treaties 


206 


Tonnage duties 165 


Senators, how chosen 


71 


Town government 170, 172 


term of office 


72 


Treason trials . . 252-257 


classifications and va- 


English treatment of 254 


cancies 


72 


Treaties, cases under 241 


qualifications 


74 


Treaty-making power 206 

Trial, speedy and public 361 


election of 


79 


Sessions of Congress 


80 


by jury. See Jury. 


Slavery compromises 


32 


Slave trade 


149 




Slaves, fugitive 


266 


u. 


Slavery abolished 


315 




Soldiers, quartered 


WH 




South Carolina ratifies 


36 


United States not a confederacy. .. 11 




63 
294 


arepublic 3 


Speech, freedom of 




State legislatu res 105-10fi 


V. 


legislation 


169 


officers 


222 




judiciary 


257 


Vacancies in house of representa- 




263 

268 




bounda ries changed , how 


in Senate 73 


law, controlled by U. S. law . 


2S4 


in Presidency 196 


citizenship 


321 


in appointive offices 212 


States, cases affecting 245 


248 


Veto, the, by the President 101 


power to regulate commerce 


121 


how bills may pass over 102 


prohibitions on 15S 


-168 


Vice-President is president of the 


conflicting claims to land.. 


248 




relations to citizens of other 


Vice-President. 183, 191, 194, 196 


states 


264 


Village government 171, 173 


concurrent jurisdiction of . . 


265 


Virginia plan for constitution 29 


admission of 


267 


Virginia ratifies 36 


protection of 


277 


Volunteer soldiers 138 


rival governments in 


278 


Voting in Congress, methods of 9% 



350 



INDEX. 



w. 

PAGE. 

War, power to declare 132 

states not to engage in 167 

Washington leads movement for 

constitution 25 

letter to governors of 

states 27 

letter of transmittal 
of constitution — 34 
Weights and measures '. 127 



PAGE. 

Witness, against self cannot be 
compelled 299 

Witnesses, right to cross-examine . 303 
right to subpoena 303 

Women not made voters by the Con- 
stitution 324 

Women, naturalization^ 320 

Y. 
Yeas and nays 92 



AN EXPOSITION 



OF THE 



CONSTITUTION 



OF THE 




iate jrjf Hist0nsin 



BY 

V 

A. O. WRIGHT. 



REVISED AND IMPROVED. 




MADISON, WIS.: 

MIDLAND PUBLISHING CO., 
1897. 



Copyright, 1897, by A. O. Wright. 



DEMOCRAT PRINTING CO., MADISON, WIS. 



TABLE OF CONTENTS. 



Analysis and Exposition, 9-162 

Enacting Clause, 9 

Art. I. Declaration of Rights, 14 

II. Boundaries, 39 

III. Suffrage, 47 

IV. Legislative, 58 

V. Executive, 86 

VI. Administrative, 97 

VII. Judiciary, 102 

VIII. Finance, 123 

IX. Eminent Domain and Property of the State, . . 130 

X. Education, 134 

XI. Corporations, 145 

XII. Amendments, 152 

XIII. Miscellaneous Provisions, 155 

XIV. The Change from Territory to State, .... 162 
Index, 185 



WHAT CONSTITUTES A STATE: 






What constitutes a state f 
Not high-raised battlements or labored mound, 

Thick wall or moated gate; 
Not cities proud with spires and turrets crowned; 

Not bays and broad-armed ports, 
Where, laughing at the storm, rich navies ride, 

Not starred and spangled courts, 
Where low-browed baseness wafts perfume to pride. 

No: — men, high-minded men, 
With powers as far above dull brutes endued 

In forest, brake or den, 
As beasts excel cold rocks and brambles rude — 

Men who their duties know, 
But know their rights, and, knowing, dare maintain, 

Prevent the long-aimed blow, 
And crush the tyrant, while they rend the chain; 

These constitute a state; 
And sovereign law, that state's collected will, 

O'er thrones and globes elate, 
Sits empress, crowning good, repressing ill. 

—Sir William Jones, from the Greek. 



HISTORY. 



HISTORY. 

This Constitution of Wisconsin is historically de- 
scended from the United States Constitution, which in 
turn owes its origin to the early state constitutions, to 
the colonial charters, and to the English Constitution. 

Immediately upon its adoption the United States Con- 
stitution became the model for the state constitutions, 
but in one respect the state constitutions soon began to 
diverge from the model. The progress of democratic 
ideas caused a change in one state after another from 
the semi-aristocratic type of government in the earlier 
state constitutions and in the United States Constitution 
to a more democratic type. The right of suffrage was 
extended from the propertied classes so as to include all 
male citizens, and in several states also foreigners who 
had declared their intention to become citizens. Man- 
hood suffrage took the place of property suffrage. Along 
with this went also the change from appointive to elec- 
tive officers. All state and county and other local of- 
ficers, including judges, were elected by the people in- 
stead of being appointed by the legislature or the gov- 
ernor. A third feature of this democratic movement 
was that voting was done by the secret ballot instead of 
viva voce, thus protecting the poor voter from undue in- 
fluence. 



6 CONSTITUTION OF WISCONSIN. 

The "Wisconsin Constitution was adopted at a time 
when this democratic movement had already been car- 
ried into effect in a majority of the states and in all the 
newer states, so that there was no question about man- 
hood suffrage, the ballot and election of all officers being 
made features of the state Constitution. Negro suffrage 
was left to be decided later. There were three great po- 
litical issues on which national parties were divided at 
that time, slavery, banks and internal improvements. 
Wisconsin in her constitutional convention took a de- 
cided stand against slavery. This was in accordance 
with the Missouri Compromise, not then repealed, which 
divided the New West between slave states and free 
states according to their geographical location, making 
Wisconsin a free state, because north of 36° 30'. On 
the other two questions the Constitution shows plainly 
that a compromise was effected between the Whigs and 
Democrats. 

One great question of that day, now settled in every 
state, was whether the state should adopt a system of 
free schools. After a spirited canvass before the people 
and in the convention the friends of free schools car- 
ried the day, and embodied in the Constitution a provi- 
sion for free schools and also for a state university and 
for normal schools. This placed Wisconsin on what 
was then the most advanced ground for popular educa- 
tion. 

The New York constitution of 1846 had just been 
adopted, embodying many of these changes and also 



HISTORY. 7 

some provisions respecting landholding caused by the 
conflict in that state over colonial feudal tenures. This 
constitution had a great influence upon the "Wisconsin 
Constitution, partly because so many settlers in "Wiscon- 
sin had recently come from ~New York. 

The question of the boundaries of the new state had 
been agitated while it was a territory. But the question 
was settled by Congress without regard to the wishes of 
"Wisconsin. The boundary fixed by the Ordinance of 
1787 for the fifth state to be formed out of the old 
Northwest Territory was all north of a line running due 
west from the southern extremity of Lake Michigan, and 
between the Mississippi and Lakes Michigan and Super- 
ior. But the earlier states secured slices of territory 
additional to those given by the Ordinance of 1787, leav- 
ing the only real question to be settled at this time that 
of the western boundary. Even in this, the request of 
"Wisconsin embodied in the Constitution was unavailing, 
and the territory between the St. Croix and the Missis- 
sippi was also taken from the new state. 

Two conventions were necessary, as the first Constitu- 
tion was not satisfactory to the people in several points 
relating to the political issues of the day. The second 
-constitutional convention avoided several of these ques- 
tions by leaving them to be voted on separately. 



THE CONSTITUTION OF WISCONSIN. 



THE ENACTING CLAUSE. 

We, the people of Wisconsin, grateful to Almighty God for our 
freedom; in order to secure its blessings, form a more perfect 
government, insure domestic tranquility and promote the general 
welfare; do establish this Constitution. 

I. The source of these words. — 

This enacting clause is plainly taken from the enact- 
ing clause in the United States Constitution, with some- 
changes. Notice the order in which the objects of the 
Constitution are given: First freedom, then govern- 
ment, and then the two great ends of government, do- 
mestic tranquility and the general welfare. 

II. The people the authors of this Constitution. 

The people are the source of all political power in 
Wisconsin, and "the people of Wisconsin" establish this 
Constitution. Thus the very first words of the Consti- 
tution show the republican form of government in this 
state, which is guaranteed to all the states by the United 
States Constitution. This Constitution is not granted 
by a monarch who can take it away again when he 
pleases; nor is it established by a few nobles for their 
own benefit. Here, in America, we are all sovereigns,. 



10 CONSTITUTION OF WISCONSIN. 

and make laws and constitutions to suit ourselves. And, 
therefore, the enacting clause states that it is the people 
of Wisconsin who make this Constitution. 

III. Thanks to Almighty God.— 

It is very proper for the people of the state in fram- 
ing the Constitution to express their thanks to God. This 
does not establish any religion, for this Constitution (Art. 
I, Sees. 18 and 19) guarantees complete freedom of re- 
ligion. But it does mean this : That the people of Wis- 
consin believe in God and wwship Him; and believe, 
moreover, that they owe their freedom to Him. 

IV. The first object of this Constitution. — 

The first and greatest object with Americans always 
is "to secure the blessings of freedom." And in accord- 
ance with this, the first article of our state Constitution 
is a declaration of rights, intended to secure the bless- 
ings of freedom to every person in Wisconsin, citizen 
or foreigner, of whatever color, race, age or sex. And 
then the Constitution goes on to arrange the machinery 
of government, so as to "insure domestic tranquility and 
promote the general welfare." 

V. The second object of this Constitution. — 

To secure the blessings of freedom, we need a settled 
government with good laws, justly carried out. It is 
not enough to be free ; we must be protected in our free- 
dom from being oppressed by any one else ; and this can 
only be done by a regular and a just government. 



THE ENACTING CLAUSE. 11 

Before this Constitution was adopted and the state admitted 
to the Union, the government of Wisconsin was territorial. 
It was a territory of the United States, and it was governed 
by the United States. The governor and judges of the terri- 
tory were appointed by the President, and the laws passed by 
the territorial legislature could be overruled at any time by 
Congress, and, indeed, Congress could, if it pleased, have 
abolished the legislature altogether, and itself made laws for 
the territory. But when this Constitution was adopted and 
Congress had made the territory of Wisconsin a state, with 
this Constitution as its fundamental law, "a more perfect 
government" was formed. Within the limits fixed by the 
United States Constitution, the people of the state can now 
manage their government to suit themselves. The state gov- 
ernment is "a more perfect government" than the territorial 
government was. 

VI. The third object of this Constitution.— 

A good government will "insure the domestic tran- 
quility" by preventing riots and insurrections, by re- 
straining crimes of every kind, and by defending the 
state against war or invasion. And these things the 
Constitution provides for. 

VII. The fourth object of this Constitution. — 

Besides these, a good government will "promote the 
general welfare" by promoting education, by fostering 
agriculture, manufactures and commerce, and by secur- 
ing to every man, woman and child in the state, a fair 
chance in life. These things the Constitution provides 
for either directly or indirectly. And thus the Consti- 
tution fulfills the objects set forth in this enacting 
clause, as we shall see by the farther study of it. 



12 CONSTITUTION OF WISCONSIN. 

VIII. The state and the nation. — 

The state of Wisconsin is one of the states of the 
United States of America. 

The name state is properly given only to an inde- 
pendent political community. It was properly applied 
to each of the thirteen original states before the adop- 
tion of the United States Constitution, because they 
were then in theory independent political communities 
united for mutual defense. But the name, having been 
once given, was preserved when the facts were changed. 
The United States is now a nation; and the state of 
Wisconsin is one of the political divisions of the United 
States, but is not an independent political community. 

When the United States Constitution was adopted, 
the states gave up to the United States their independ- 
ence, and all their powers as nations, and retained only 
the powers necessary for local self-government. In gen- 
eral terms, we may say that the relations of the state 
and United States governments are these : 

The United States government has all the powers 
needed for national independence. 

The state government has all the powers needed for 
local self-governmen t. 

The state of Wisconsin has therefore no powers which 
belong to nations as independent political bodies. The 
following points of subordination are distinctly speci- 
fied in the United States Constitution: 

I. The state can adopt no other form of government except 
the republican form. (U. S. Const., IV, 4.) 



THE ENACTING CLAUSE. 13 

II. The state cannot change its boundaries, except by the 
-consent of the United States. (U. S. Const., IV, 3, 1.) 

III. All the state officials must take an oath to support the 
United States Constitution. (U. S. Const., VI, 3.) 

IV. The supreme law of the land is the United States law, 
•consisting of: (1) The Constitution of the United States. 
(2) All laws of the United States not unconstitutional. (3) 
All treaties made with foreign powers. All parts of the state 
Constitution and laws which conflict with the United States 
law are null and void. (U. S. Const., VI, 2.) 

V. The state cannot have relations of peace or war with 
other nations. 

1. It cannot leave the Union to join ar other nation. (U. S. 
Const., I, 10-, 1.) 

2. It cannot make treaties with other states or with foreign 
powers. (U. S. Const,, I, 10, 2.) 

3. It cannot make war, except when invaded, or in immi- 
nent danger. (U. S. Const., I, 10, 2.) 

4. It cannot make war indirectly by sending out privateer- 
ing vessels. (U. S. Const., I, 10, 1.) 

5. It cannot prepare for war by keeping troops or ships, 
without the consent of Congress. (U. S. Const., I, 10, 3.) _ 

VI. The state cannot control its commerce with other na- 
tions or with other states of the Union, in any of the follow- 
ing ways: 

1. By levying duties or tonnag'e on that commerce. (U. S. 
Const,, I, 10, 2.) 

2. By coining money, issuing' paper money, or making any- 
thing but gold or silver a legal tender. (U. S. Const., I, 10, 1.) 

3. By impairing the obligation of contracts. (U. S. Const., 
I, 10, 1.) 

VII. The state cannot infringe on the personal rights of its 
citizens or of others living within its jurisdiction, in either 
of these ways: 

1. By depriving any person of life, liberty or property, 
-without due process of law. (Amendment XIV to U. S. 
Const.) 



1-J: CONSTITUTION OF WISCONSIN. [Art. I. 

2. By denying any one within its jurisdiction the equal pro- 
tection of the laws. (Amendment XIV.) 

3. By abridging the privileges or immunities of citizens of 
the United States. (Amendment XIV.) 

4. By bills of attainder. (U. S. Const., I, 10, 1.) 

5. By ex post facto laws. (U. S. Const., I, 10, 1.) 

6. By creating a titled aristocracy. (U. S. Const., I, 10, 1.) 

7. By establishing slavery or serfdom. (Amendment XITT 
to U. S. Const.) 

VIII. The United States has decided, by the fourteenth 
amendment, who shall be citizens of this state. The state 
cannot deprive these citizens of their citizenship. But the 
state can make other persons citizens of the state, and has 
actually done so. 

IX. The state can decide who of its citizens shall vote; but 
it cannot deny any one the privilege of voting because of his 
race or color. (Amendment XV to U. S. Const.) 



ARTICLE I. 

DECLARATION OF RIGHTS. 
Section I. — Inalienable Rights. 

All men are born equally free and independent, and have certain 
inherent rights; among these are life, liberty and the pursuit of 
happiness: To secure these rights governments are instituted 
among men, deriving their just powers from the consent of the 
governed. 

I. Definition of freedom. — 

All men are born equally free and independent; but 
freedom and independence do not consist in baying a 
voice in tbe government, but only in being justly ruled 
and protected by a government of our own choice; other- 
wise women and children might complain that they do 



SeC. 1.] INALIENABLE RIGHTS. 15* 

not share in the freedom of this country, because they 
do not vote. 

Nor does freedom consist in doing as we please. No- 
body does just as he pleases in any. civilized community* 
"We all must restrain some of our desires, or else en- 
croach upon some one else's rights. Our liberty con- 
sists in doing as we please, so long as we do not interfere 
with some other person's liberty. "We have not an ab- 
solute right to everything we choose, but we "have cer- 
tain inherent rights." 

II. Inherent rights. — 

There are two kinds of rights, inherent rights and 
conventional rights. Inherent rights are those rights 
that belong to everybody everywhere, and which it is 
the business of the law always to secure. Conventional 
rights are those that are given by law or by custom that 
has the force of law; and since they are given by law r 
they can be repealed by law. Inherent rights can be 
taken away by law, unjustly; for laws are not always 
just. Conventional rights may justly be taken away by 
law; for what the law has given, the law can take away. 

For instance, the right to vote is a conventional right. The 
Constitution, for various reasons forbids certain persons ta 
vote — women, children, persons who have come into the state 
within a year, wild Indians, convicts, United States soldiers 
and sailors. These persons cannot complain that the princi- 
ple stated in this section has been violated; for the right to 
vote is not an inherent, but a conventional right. The peo- 
ple of the state, should they see fit, can extend the right to- 
vote to any or all of these classes; or, if they see fit, can still 



16 CONSTITUTION OF WISCONSIN. [Art. I. 

further restrict the right to vote by shutting* out other 
-classes, and no one can reasonably complain. But if, because 
of the restriction or the extension of the suffrage, the inher- 
ent rights of any class are put in danger, they can rightfully 
complain; not because of that restriction or extension of the 
suffrage, but because of the consequences that flow from it 
in violation of their inherent rights. 

Again, the right to hold property, subject to a reasonable 
taxation from the state, is an inherent right. The govern- 
ment has no right to take any one's property from him with- 
out paying him for it, or to let any one else take it from 
him at all without his consent. A man has always the right 
to his earnings; for it is with them that he buys the means 
of life and happiness, and it is the business of government 
to protect him in that right. But nobody has an inherent 
right to some particular kind of property; like land, for in- 
stance. The ownership of land is only a conventional right, 
and, therefore, the state reserves to itself, in Article IX, the 
right of "eminent domain," and will take a man's land when- 
ever it is needed for a street or any other public purpose, 
whether he is willing to let it go or not. But, though the 
state can thus justly break through his conventional right to 
hold land, it cannot justly take away his inherent right to his 
property, and, therefore, the Constitution provides (I, 13) 
that whenever the state takes away any one's land, it must 
pay him a fair price for it. 

These examples will show the distinction between inherent 
and conventional rights, which must be kept carefully in 
mind all through this article. The object of this Declaration 
of Eights, with which our state Constitution so nobly begins, 
is to secure the inherent rights of every person who comes 
within the jurisdiction of the state. The line between in- 
herent and conventional rights is very carefully and ably 
-drawn. And it is to secure these rights by some power 
stronger than a bit of printed paper that the machinery of 
the state government was established in the rest of the Con- 
stitution. 



bee. 2.-] SLAVERY PROHIBITED. 17 

III. The end of government is to secure our 
inherent rights. — 

The end of all government is to secure us in our in- 
dividual freedom. A government that does not do this, 
is not worth having. The first duty of every govern- 
' ment, whether it is a monarchy, an aristocracy or a 
democracy, is to secure the subjects or citizens of that 
government in those inherent rights, without which they 
cannot be truly free. The right to life, to personal lib- 
erty, to have a fair chance in life, and to seek our happi- 
ness as we please, so long as we do not infringe on the 
rights of any one else, are inherent rights. To secure 
them is the object of all government. There is no pe- 
culiar sacredness in any institutions of government. 
They are but the means by which the end of good gov- 
ernment is attained. Any form of government needs 
the consent of those who are governed, and, if it becomes 
oppressive, they have a right to change it. 

Section II. — Slavery Prohibited. 

There shaU be neither slavery, nor involuntary servitude in this 
State, otherwise than for the punishment of crime, whereof the 
party shall have been duly convicted. 

I. Slavery prohibited. — 

"When the state Constitution was adopted, African 
slavery was allowed in many states of our Union, and it 
was, -therefore, necessary for the state of Wisconsin to 
put itself on one side or the other of this question. This 
state prohibited slavery by its Constitution. 

Slavery violates the inherent right to liberty and the 

Wis. Con.— 2. 



18 CONSTITUTION OP WISCONSIN. [Art. I. 

pursuit of happiness, and is, therefore, prohibited justly 
and consistently with Section 1 of this article. 

This provision in our state Constitution is now made need- 
less by the thirteenth amendment to the United States Con- 
stitution, which prohibits slavery everywhere in the United 
States. 

The wording- of the thirteenth amendment of the United 
States Constitution is plainly taken from this section and 
other similar sections in the Constitutions of other states, 
and from the Ordinance of 1787. 

II. Imprisonment for crime excepted. — 

A person may be shut up in the state's prison, and 
thus have his liberty taken away, whenever he shows 
that he is a dangerous character by doing some crime. 
His right to liberty and the pursuit of happiness is taken 
away from him for these reasons : to stop him for a time 
from infringing on other people's rights, to reform him, 
if possible, and to prevent others from committing like 
crimes, by fear of a like penalty. 

Section III. — Freedom oe Speech. 

Every person may freely speak, write and publish, his sentiments 
on aU subjects, being responsible for the abuse of that right, and 
no law shall be passed to restrain or abridge the liberty of speech, 
or of the press. In all criminal prosecutions, or indictments for 
libel, the truth may be given in evidence, and if it shall appear 
to the jury, that the matter charged as libellous be true, and was 
published with good motives and tor justifiable ends, the party 
shall be acquitted; and the jury shall have the right to determine 
the law and the facts. 

I. Freedom of speech. — 

Next to the right to life and to liberty of body, is the 
liberty of speech. In most countries it has been 



SeC. 3. J FREEDOM OF SPEECH. 10 

thought that it is not safe to let people speak or write 

what they please. But in the United States the people 

govern, and therefore we are not afraid to allow free 

speech. In Wisconsin, as in the rest of onr country, 

everybody can speak or write or print whatever he 

pleases, with one exception, named in this section. 

We have found out in America that the truth will take care 
of itself, if we only let it alone and give it a fair chance; and 
that the more we try to help the truth by law, the more we 
really hurt it. Freedom is the best atmosphere for truth to 
live in. Tennyson's words in praise of England are just as 
true of America: 

" It is the land that freemen till, 

That sober-suited Freedom chose ; 
The land where, girt with friends or foes, 
A man may speak the thing he will ; 

" Where faction seldom gathers head ; 
But by degrees to fullness wrought, 
The strength of some diffusive thought 
Hath time and space to work and spread." 

II. Limited by the rights of reputation. — 

The liberty of speech is limited by the rights of other 
people. If we were free to say anything we chose, we 
might harm other people very greatly. Therefore, al- 
though we may speak onr minds, we must not do it so 
as to injure any one's reputation. 

This is the rule of the English common law, which would 
be our own law on the subject, were it not for the rest of this 
section, as the common law is adopted by this Constitution. 
(XIV, 13.) 

Under the common law, the rule was "the greater the truth 
the greater the libel." 

But under this section of our Constitution, any one may 



20 CONSTITUTION OF WISCONSIN. [Art. I. 

tell that which will injure the reputation of another, on cer- 
tain conditions: First, it must be true. Second, the one who 
tells it must tell it with good motives — that is, not maliciously 
or spitefully. Third, he must tell it for justifiable ends — 
that is, not for the sake of hurting some one's reputation, 
but to do some good. 

Usually, the judge determines the law, and the jury the 
facts in the case; but in libel suits, under this section, the 
jury decide everything — the fact, whether the thing charged 
was actually said, or written, or printed, and the law, whether 
the thing charged is a libel within the meaning of the law. 
By this it is not meant that the judge has nothing to say 
about the law; he instructs the jury as to what the law is, 
and then the jury decide for themselves. 

Section IV. — Freedom oe Assembly and Petition. 

The right of the people peaceably to assemble, to consult for the 
common good, and. to petition the government, or any department 
thereof, shall never be abridged. 

I. The right of assembly. — 

In many countries, the government is afraid to let the 
people have political meetings or get up petitions for the 
redress of grievances. Here, any number of people may 
come together in any sort of societies, religious, social 
or political, or even in treasonable conspiracies, and, so 
long as they behave themselves and do not hurt anybody 
or make any great disturbance, they may express them- 
selves in public meetings by speeches and resolutions 
as they choose. 

II. The right of petition. — 

There are very few countries in which the govern- 
ment is so despotic that it refuses to receive petitions 



Sec. 5.] TRIAL BY JURY. 21 

and to hear the complaints of its subjects or citizens. 

And. onrs being a free government, of conrse gives this 

right to its citizens. 

If any person or persons wish to have the laws changed in 
any way, they have a right to petition the legislature for that 
change. The legislature must receive and listen to the peti- 
tion, and then it may make the change in the laws, or not, 
as the members may see fit. So also with city councils and 
county, village, town and district boards*. On all things that 
are under their care, they must receive and listen to all peti- 
tions that anybody chooses to send them; and then they 
may do as they please about acting on them. So, also, for 
anything that is in charge of any executive or judicial of- 
ficer. The governor must receive all petitions for pardon, 
but he can do as he chooses about granting the pardon. 

Section V. — Trial by Jury. 

The right of trial by jury shall remain inviolate; and shall extend 
to all cases at law, without regard to the amount in controversy; 
but a jury trial may be waived by the parties in all cases, in the 
manner prescribed by law. 

Trial by jury is an ancient English custom that was 
meant to secure fair trials, so that the decision should 
not depend upon the judge alone, but also upon a num- 
ber of unprejudiced citizens. With the rest of the Eng- 
lish common law, trial by jury was brought over to this 
country by the English colonists, and has been adopted 
in every state in our Union. The Constitution there- 
fore says that the right of trial by jury shall remain in- 
violate. 

A jury generally consists of twelve persons chosen in 
such a way that they shall be impartial. In suits be- 



22 CONSTITUTION OF WISCONSIN. [Art. I. 

fore a justice of the peace, the number is usually six. 
In any verdict of a jury all must agree. 

A jury trial may be waived by a criminal when lie pleads 
"guilty" in open court. There is no need of a jury to estab- 
lish his guilt, since he has himself confessed it in a regular 
and lawful way. In criminal cases, the jury can determine 
only the fact, and that is determined when the plea of 
"guilty" is put in, and therefore no jury is needed to deter- 
mine it. 

In civil suits, a jury trial may be waived where both parties 
agree to it. In cases brought before a justice of the peace, 
the presumption is that a jury will not be wished, and the 
case will be tried without one unless either party call for a 
jury. In that case, the call cannot be denied, under the Con- 
stitution. In civil suits before a judge, the presumption is 
that a jury is wished, and the case will be tried before a 
jury unless both parties agree to waive it. Equity cases are 
decided without a jury. 



Section VI. — Excessive Bail and Punishment. 

Excessive bail shall not be required, nor shall excessive fines be im- 
posed, nor cruel and unusual punishments inflicted. 

I. Excessive bail. — 

Bail is the security given that a person arrested for 
any offense will appear in court and stand his trial when 
the time conies. When no bail is given, the person 
charged with the offense will be kept in jail till his trial 
conies off; not to punish him, for that is unlawful, under 
Section 2, for he has not yet been "duly convicted" of 
any crime, but to make sure that he will be on hand to 
be tried. Should a justice of the peace ask too great 
bail, the case can be carried before a circuit or county 



Sec. 7.] RIGHTS OF ACCUSED PERSONS. 23 

judge or a court commissioner (VII, 23), on a writ of 
habeas corpus, and the bail be reduced by him, should 
he think it is excessive. If a circuit judge asks too 
great bail, the case could be carried in the same way 
before the supreme court. 

II. Excessive fines. — 

Fines and punishments are prescribed by law for each 
offense. The law prescribes the greatest and the least 
fine or other punishment, and the court must not im- 
pose a greater punishment than the greatest, or a less 
one than the least prescribed by law. If the law, itself, 
should fix too severe a penalty, the judge could decide 
that the law is unconstitutional, and refuse to punish 
the offender so heavily. ]STo such case, however, has yet 
arisen in this state. 

III. Cruel and unusual punishments. — 

Cruel and unusual punishments are understood to 
mean such punishments as whipping, branding with a 
hot iron, maiming, torturing, burning at the stake, 
breaking on the wheel, drawing and quartering, and the 
like. These were, until a century or two ago, inflicted 
everywhere ; but have now been abolished in all civilized 
countries. 

Section VII. — Rights oe Accused Persons. 

In all criminal prosecutions, the accused shall enjoy the right to 
be heard by himself and counsel; to demand the nature and cause 
of the accusation against him; to meet the witnesses face to face; 
to have compulsory process to compel the attendance of witnesses 
in his behalf; and in prosecutions by indictment, or information, 



24 CONSTITUTION OP WISCONSIN. [Art. I. 

to a speedy public trial by an impartial jury of the county or dis- 
trict wherein the offence shall have been committed; which county 
or district shall have been previously ascertained by law. 

I. The right to have counsel. — 

Every person has a right to be his own lawyer, if he 
chooses. But most persons will always prefer to have 
a lawyer carry on the case for them, who is skilled in 
the technicalities of law, who knows how things are 
done in a court room, and who can talk. As the law 
used to be in England, an accused person was not al- 
lowed a lawyer, while the state had the best lawyers to 
plead the case against him. This section of the Consti- 
tution prevents any such injustice. Every accused per- 
son can have a lawyer, if he chooses. If he is too 
poor to furnish one himself, the judge appoints one for 
him, who is paid by the county. And every accused 
person has also the right to speak for himself if he 
chooses, after the lawyers are through. 

II. To know the accusation. — 

An accused person always has a right to see the in- 
dictment against him, and to know for what offense he 
is to be tried, so that he may be prepared to defend him- 
self as well as he can; and, if he is innocent, so that he 
can prove his innocence. 

III. To cross-examine witnesses* — 

He has the right to meet the witnesses face to face, 
so that he or his lawyer may cross-examine them to see 
whether they tell the truth or not. 



Sec. 8.] RIGHTS OF ACCUSED PERSONS. 25- 

IV. The right to subpoena witnesses. — 

He may subpoena witnesses for himself, as the state 
can against him, so that if any one knows anything 
about a crime, he may be compelled to come into court 
and testify, so that the truth may be got at as near as may 
be. 

V. The right to a speedy, public trial. — 

The trial for petty offenses, before a justice of the 
peace, comes as soon as possible. For graver crimes, 
the trial comes off at the next term of the circuit court, 
in the county, unless there is some good reason for put- 
ting it off. 

Trials are always public, and any one can be present 
who pleases. It is more likely that justice will be done 
in this way than if the trials were held privately. 

VI. The right to an impartial jury of the county 

or district. — 

An accused person cannot be taken to some other part 
of the state to be tried. If he chooses, he can demand 
a trial where the offense was committed. If he thinks 
that the judge is prejudiced, or that the whole county 
is prejudiced, so that he could not get an impartial jury, 
he can have a "change of venue" to another county. 

Section VIII. — Rights of Accused Persons. 

No person shall be lield to answer for a criminal offense without 
due process of law, and no person, for the same offense, shall be 
put twice in jeopardy of punishment, nor shall be compelled in 
any criminal case to be a witness against himself. All persons 



26 CONSTITUTION OF WISCONSIN. [Art. I. 

shall before conviction be bailable by sufficient sureties, except 
for capital offenses when the proof is evident or the presumption 
great; and the privilege of the writ of habeas corpus shall not be 
suspended unless when in cases of rebellion or invasion the public 
safety may require. 

[As amended Nov. 8, 1870.] 

I. This section amended. — 

The object of the amendment was to do away with 
the grand jury system. This is not in violation of the 
United States Constitution, for that applies only to cases 
arising under United States laws. 

II. Due process of law. — 

This means in all serious cases, not military, either a 
preliminary examination before a justice of the peace, 
or information laid before the district attorney. The 
object of this, as of the old way of indictment by a grand 
jury, is to prevent evil-disposed persons annoying inno- 
cent people with frivolous or groundless accusations. 
]STo person can be held to answer for a criminal charge, 
unless it can be shown that there is probable reason to 
suppose that he is guilty. 

Minor offenses may be tried before a justice of the peace 
or a police court, without a preliminary examination. 

In time of war, martial law takes the place of civil law 
for all soldiers and sailors, and all people who live where 
the war is going on. When nations are fighting, they cannot 
stop for the slow justice of peace. In time of peace, soldiers 
and sailors can be punished by the courts for all offenses 
against the laws; and also by their officers or by court mar- 
tial, for all offenses against the army regulations. In such 
cases, martial or military law is considered "due process of 
law." 



Sec. 8.] RIGHTS OF ACCUSED PERSONS. 27 

III. Not tried twice for the same offense. — 

ISTo person can be tried twice for the same offense ; but, 
if the jury disagree, he can be tried before a new jury. 
That is not another trial, but the same one continued. 
'Or, the case may be carried to a higher court on an ap- 
peal, or a writ of certiorari or of error. In that case, 
too, it is not a new trial, but the same trial continued; 
though it is often called, improperly, a new trial. 

IV. Not compelled to testify against himself. — 

It is the custom in most countries to make accused 
persons testify against themselves, and formerly, when 
the accused did not answer the questions as the judge 
wished him to do, he could be tortured until he con- 
fessed all that he had done, and a great deal that he had 
not done. This injustice is prevented by the Constitu- 
tion. An accused person may plead guilty if he 
chooses, and confess to as much as he wishes to, of the 
charge against him; but he is not compelled to say any- 
thing unless he wishes to. 

Under the Constitution, also, a witness cannot be 
forced to answer any question which would criminate 
himself. 

17". Admitted to bail. — 

For a definition of bail, see page 22. 

Capital offenses are those which are punishable with 
death. As no crimes are now punished by death in this 
:state, there are, of course, no capital offenses. 



28 CONSTITUTION OF WISCONSIN. [Art. I. 

VI. The privilege of the writ of habeas corpus. 

The writ of habeas corpus is a process by wliicli any 
person unjustly confined, either by private persons or by 
public officers, can be set free, if he has a right to be 
free. Any person unjustly detained may sue out a writ 
of habeas corpus before any judge or court commis- 
sioner. (VII, 23.) The person detained and the per- 
son detaining him are then brought immediately before 
the judge or court commissioner, the case is heard, and 
if the person held ought to be free, he is set free at once 
by the judge or court commissioner. 

In time of war and public danger it is often necessary 
to arrest persons on suspicion, and hold them until proof 
of their crimes has been secured. In such cases the 
legislature must suspend the privilege of the writ of 
habeas cw*pus, and then the officers of the state can im- 
prison any one they please without being liable to have 
their prisoners freed by a writ of habeas corpus. 

Section IX. — Justice Should be Free and Certain. 

Every person is entitled to a certain remedy in the laws, for all in- 
juries, or wrongs which he may receive in his person, property, 
or character; he ought to obtain justice freely, and without being 
obliged to purchase it, completely and without denial, promptly 
and without delay, conformably to the laws. 

This is a statement of a truth which is only so much 
talk, except as it is carried out in the laws. This section 
has no more binding force than any other good advice 
has. But our statute books show that the legislature 
has tried to carry this out in good faith. There are very 



Sec. 10.] TREASON. 29 

few wrongs to persons, property or character, for which 

redress cannot be had under the laws of "Wisconsin. 

Every person in the state can "obtain justice freely and 
without being- obliged to purchase it." Any judge who should 
take a bribe would be removed from his office by impeach- 
ment (VII, 1) or by address (VII, 13), and be fined and im- 
prisoned beside. It costs nothing to prosecute for any crime. 
The state carries on all criminal suits in its own name and at 
its own cost; for they are "against the peace and dignity of 
the state of Wisconsin." (VII, 17.) In civil suits, which are 
carried on for the benefit of private persons, each one must 
pay his lawyer, if he has any, and the party who loses must 
pay the costs of the suit. With these exceptions, justice' 
costs nothing in Wisconsin. 

Section X. — Treason. 

Treason against the State shall consist only in levying: war against 
the same, or in adhering to its enemies, giving them aid. and com- 
fort. No person shall be convicted of treason, unless on the testi- 
mony of two witnesses to the same overt act, or on confession in 
open court. 

I. What is treason. — 

Under this section, any one may talk treason as much 
as he pleases, and may even conspire against the govern- 
ment, without being punished for treason. Only open 
acts of war are counted treason. * 

II. Proof required to convict of treason. — 

Two witnesses are required, because in times of civil 
war and rebellion party spirit rules so high that one wit- 
ness might easily swear falsely, or exaggerate the truth. 

The confession must be in open court, so that it shall 
be the real confession of the accused, as he wishes to 
make it, and so that it shall be truly reported. 



30 CONSTITUTION OF WISCONSIN. [Art. L 

Section XI. — Searches and Seizures. 

The right of the people to be secure in their persons, houses, papers 
and effects, against unreasonable searches and seizures shall not 
be violated; and no warrant shall issue bat upon probable cause,, 
supported by oath, or affirmation and particularly describing the 
place to be searched, and the persons or things to be seized. 

Under the Constitution, the officers of the law cannot, 
search any house and any place they please, to find stolen 
property. Some one must first swear out a search war- 
rant, and show some reason to think the things wanted 
are there; and then the person or place can be legally 
searched — and not before. 

Section XII. — Bills oe Attainder, Etc. 

No bill of attainder, ex-post facto law, nor any law impairing the- 
obligation of contracts, shall ever be passed, and no conviction- 
shall work corruption of blood, or forfeiture of estate. 

I. The origin of this section. — 

The three things forbidden in the first half of this 
section are forbidden to every state by the United States 
Constitution (Art. I, Sec. 10), and are, therefore, forbid- 
den in this state by double authority — that of the state 
Constitution and that of the United States Constitution. . 

II. Bills of attainder forbidden. — 

A bill of attainder is a bill to punish a single person or 
a number of persons, named in the bill, without a regu- 
lar trial. 

III. Ex post facto laws forbidden. — 

An ex post facto law is one to punish, not only those 
who may afterward break it, but those who have already,. 



Sec. 12.] BILLS OF ATTAINDER. 31 

before trie law takes effect, done anything contrary to it; 

or a law which adds a new punishment to former crimes. 

For instance, a law to punish with death all murderers who 
may be convicted of murders they have already done,- "would 
be ex post facto, because the punishment for that crime is now 
imprisonment in the state's prison. But a law to hang 1 all 
persons who are convicted of murder, done after the law 
goes into effect, would be perfectly constitutional. 

IV. Obligation of contracts not to be impaired. 

Contracts once made cannot be broken, unless the per- 
sons who make the contract all agree to break it. But 
the law can determine what shall be the conditions of a 
valid contract. 

For instance, a contract which is for an immoral purpose, 
or "which involves an immoral consideration, is never valid, 
and may always be broken. A contract to sell counterfeit 
money, a contract to kill another person for so much money, 
a bargain made by a judge to give a wrong decision, would 
none of them be binding contracts. The parties had no right 
to make them in the first place, and therefore can break them 
when they please. The obligation of these contracts is not 
impaired by the law annulling them; for they never had any 
obligation. The law can at any time fix the conditions of 
all future contracts, but it cannot impair the obligation of 
past contracts, provided they were legal when they were 
made. This provision of the Constitution in civil cases, is 
like the provision against ex post facto laws in criminal cases. 

V. Corruption of blood forbidden. — 

Corruption of blood is punishing children for the sins 
of their fathers. Under the English common law, when 
any one was convicted of treason, he forfeited all his prop- 
erty to the state, and his blood was considered corrupt; 



-32 CONSTITUTION OF WISCONSIN. [Art. I. 

so that his children and other relatives could not inherit 
from him. His link in the chain of inheritance was 
broken, so that none could inherit property or titles or 
civil rights from him. This great injustice of punish- 
ing children for what their fathers have done, is abol- 
ished by this section. 

Section XIII, — No Property Taken Without Compensation. 

The property of no person shall be taken for public use, without 
just compensation therefor. 

The state has the right of eminent domain, and can 
take private property for public use whenever it chooses. 
The Constitution provides that when private property is 
so taken there shall always be just compensation given 
for it. 

Section XIV. — Feudal Tenures Forbidden. 

All lands within the State are declared to be allodial, and feudal 
tenures are prohibited:— Leases and grants of agricultural land, 
for a longer term than fifteen years, in which rent, or service of 
any kind shall be reserved, and all fines and like restraints upon 
alienation, reserved in any grant of land, hereafter made, are 4 .de- 
clared to be void. 

I. All lands allodial. — 

Allodial lands are those which are held by the owner 
without being subject to any feudal service or any tax or 
rent other than the tax levied by the government. Near- 
ly all the land in the United States is allodial. 

II. Feudal tenures forbidden. — 

Feudal tenure originally was military service; later, 
it came to mean any service or rent that is to be per- 
petual. 



SeC. 14.] FEUDAL TENURES FORBIDDEN. 33 

The time is limited for which, farming land may be 
rented, because, otherwise, this section might have been 
evaded by leasing land for a very long period (for in- 
stance, for nine hundred and ninety-nine years, the term 
for which land has sometimes been leased in England). 
This is restricted to agricultural lands, because land is 
frequently leased for building purposes for a longer time 
than fifteen years. 

III. Entails forbidden.— 

Fines and like restraints upon alienation are common- 
ly called "entails/ 7 and are frequently used in England 
to keep large estates together after the death of the 
owner. 

IV. The object of this provision. — The object of this pro- 
vision of the Constitution is to prevent the growth of a landed 
aristocracy, such as is the curse of England to-day. To do 
this, feudal tenures and entails are both prohibited by this 
section. Primogeniture, or the right of the eldest son to in- 
herit all the real estate with the title, has never been estab- 
lished in this state, and, probably, never will be. These three 
thing-s, feudal tenures, entails, and primogeniture, are the 
three pillars of the English aristocracy. 

What we want in this country is, that the people who till 
the land should own the land; and that anybody who wants 
land may be able to get it by offering a fair price for it. 
The farmers in moderate circumstances, who work their 
farms themselves, are the backbone of any country. With 
them, Home conquered the world; for lack of them, in later 
years, she lost it again. The honest yeomanry of England 
were her strength in former days; the lack of that class now 
is her greatest weakness. Slavery prevented the growth of 
such a class of independent farmers in the southern states, 
Wis. Con.— 3. 



34 CONSTITUTION OF WISCONSIN. [Art. I. 

and made labor dishonorable, and was, therefore, the cause 
of the ignorance and poverty of a large part of the whites- 
as well as of the blacks, all of which is being rapidly changed 
now that slavery is abolished. If we wonld be a nation of 
intelligent freemen, we mnst never allow the farming class- 
to be divided into a haughty aristocracy and a degraded peas- 
antry. That danger this section helps to guard against. 

Section XV. — Privileges oe Resident Aliens. 

No distinction shall ever be made by law, between resident aliens 
and citizens, in reference to the possession, enjoyment, or descent, 
of property. 

Aliens are foreigners who have not yet been natural- 
ized. Resident aliens are such foreigners as live in the 
state. Only aliens needed to be thus protected by the 
state Constitution, for citizens of other states living here 
are already guaranteed all the rights of citizens of this 
state by the United States Constitution. (Art. IV, Sec. 
2.) Non-resident aliens are not protected in the holding- 
of property by either constitution. E"o discrimination 
has, however, been made against them by law, and it is- 
not likely that there ever will be. Anybody, citizen or 
foreigner, resident or non-resident, can hold property in 
this state, under the same conditions. 

Section XVI. — Imprisonment eor Debt Forbidden. 

No person shall be imprisoned for debt, arising out of, or founded 
on, a contract, express or implied. 

~No person can be imprisoned for debt in this state, 
unless he has committed some fraud in regard to it. If 
he obtained property under false pretenses, he can be 



Sec. 18. J RELIGIOUS FREEDOM. 35 

imprisoned; not for the debt, but for tbe fraud. For 
tbe debt, lie must be sued in the ordinary way. So, if 
any one embezzles trust funds, whether he be a public 
officer or a guardian, or a trustee of any corporation, he 
cannot be imprisoned for the debt, but may be for the 
embezzlement. 

Section XVII. — Exemption Law. 

The privilege of the debtor to enjoy the necessary comforts of life, 
shall be recognized by wholesome laws, exempting a reasonable 
amount of property from seizure or sale for the payment of any 
debt, or liability hereafter contracted. 

The legislature has passed very liberal exemption laws. 
These laws exempt a homestead of forty acres of land, 
or a village or city lot, with the buildings on it, provi- 
sions for a year for the family, the necessary tools for 
a mechanic, the library of a professional man, and a 
great variety of things, too numerous to mention. 

Section XVIII.— Eeligious Freedom. 

The right of every man to worship Almighty God, according to the 
dictates of his own conscience, shall never be infringed; nor shall 
any man be compelled to attend, erect, or support any place of 
worship, or to maintain any ministry against his consent: Nor 
shall any control of, or interference with, the rights of conscience 
be permitted, or any preference be given by law to any religious 
establishments, or mode, of worship: Nor shall any money be 
drawn from the treasury for the benefit of religious societies, or 
religious, or theological seminaries. 

I. The right to worship in our own way. — 

One of the greatest evils of every European country 
is prevented by this section. 

There is complete religious freedom here. Any one 



36 CONSTITUTION OP WISCONSIN. [Art. I. 

may believe and teach whatever he pleases, so long as he 

does not do anything that interferes with other people's 

rights. 

For instance, any one may believe and teach the doctrine of 
the Thugs of India; that it is pleasing- to their goddess to 
liave them rob and murder travelers. We should have a right 
to think and to say that it is a very wicked religion; but we 
could not punish any one by law for believing and teaching 
it. But let one try to put it in practice by actually robbing 
and murdering some one, and he can be arrested, tried and 
punished; not for his wicked belief, but for his wicked ac- 
tions. So, the Mormons may believe in polygamy, and preach 
it in this state, without any legal punishment. But if one of 
them should try to put his belief in practice in this state, 
by marrying two or three wives, he would be punished; not 
as a Mormon, but as a bigamist. 

II. No appropriations to religious bodies. — 

]STo chnrch can be established by law as the state 
church, nor can any church be supported by appropri- 
ations from the treasury. All churches in this state are 
supported by voluntary contributions. Experience has 
shown that churches are better and purer when not aided 
or controlled by the state in any way, and that when not 
so aided, the money can be raised for their support by 
voluntary contributions. Churches, however, are by 
law exempt from taxation. 

Section XIX. — No Religious Tests for Office. 

No religious test sh.aU ever be required as a qualification for any 
office of pubUc trust under the State, and no person shall be 
rendered incompetent to give evidence in any court of law, or 
equity, in consequence of his opinions on the subject of religion. 



Sec. 21. J writs or error. 37 

Religious tests have been a great evil in Europe. 
They are prohibited here. Any person who is otherwise 
qualified, may hold any office in the state, no matter 
what his religious opinions may be. And no person can 
be prevented from testifying in any court because of his 
religious opinions. If the members of certain religious 
bodies were not allowed to testify, it would be as much as 
to say that they could not be believed under oath; which 
would be an unjust stigma to fix on any form of religious 
faith. 

Section XX. — Military Subordination. 

The military shall be in strict subordination to the civil power. 

We wish to guard against a military despotism in this 

country. "We do not wish to have a successful general 

seize the government with the help of his army; and we 

do not intend ever to give him a chance to do it. 

The National Guard of this state is under the command of 
the governor, who is commander-in-chief; and is raised or dis- 
banded at the pleasure of the legislature. Soldiers are re- 
sponsible to their officers, they to their superiors, and they to 
the governor, as commander-in-chief. Should he misuse his 
office, he can be impeached and removed; so that by this 
means the military is subordinate to the civil power. 

Section XXI. — Writs of Error. 

Writs of error shaU never be prohibited by law. 

After any criminal case or civil suit has been decided, 
if the decision is wrong by reason of any informality 
in the proceedings, or a wrong decision in regard to 
the law, it can be corrected by a "writ of error," which 



38 CONSTITUTION OF WISCONSIN. [Art. I. 

carries it up to a higher court, where if the decision 
is wrong, a new trial will be ordered. 

Section XXII.— Some Good Advice. 

The blessings of a free government can only be maintained by a 
firm adherence to justice, moderation, temperance, frugality and 
virtue, and by frequent recurrence to fundamental principles. 

Of course this has no binding force. It is only a 
recommendation, which the people can follow or not as 
they please. "We cannot make people good by law. We 
can only stop them from doing anything very bad; bnt 
though we cannot make people .virtuous by law, we need 
to have them so, to have the laws amount to anything. 
In this country the people make the men who 
make the laws, and the men who enforce the 
laws. Our free government depends upon the peo- 
ple, who can make it a blessing or a curse, according as 
they are themselves intelligent, upright and virtuous, or 
the opposite. It will do no good to write this Constitu- 
tion on paper, unless the people of Wisconsin are them- 
selves, as expressed in this twenty-second section, just, 
moderate, temperate, frugal and virtuous; and unless 
they know the principles on which our government is 
founded. That they may know these principles, the 
legislature has wisely decided that this Constitution shall 
be taught in our common schools; and it ought to be 
taught so that the scholars shall not only know the 
words, but so that they shall understand its principles, 
and know the reasons for them. 



Sec. 1.] BOUNDARIES. 39 

Aristotle said, two thousand years ago: "But whosoever 
•endeavors to establish wholesome laws in a state, attends to 
the virtues and vices of each individual who composes it; and 
hence it is evident that the first care of a man who would 
found a state, truly deserving that name, and not nominally 
so, must be to have his citizens virtuous; for, otherwise, it is 
merely an alliance for mutual defense." 

He also said: "That which contributes most to preserve 
the state is to educate children with reference to the state; for 
the most useful laws, and most approved by every statesman, 
will be of no service, if the citizens are not accustomed to 
and brought up in the principles of the constitution." 



ARTICLE II. 

BOUNDARIES AND JURISDICTION. 

Section I. — Boundaries. 

It Is hereby ordained and declared, that the State of Wisconsin 
doth consent and accept of the boundaries prescribed in the act 
of Congress entitled "an act to enable the people of Wisconsin 
Territory to form a Constitution and State government, and for 
the admission of such State into the Union," Approved August 
sixth, one thousand eight hundred and forty-six, to wit: — Begin- 
ning at the north-east corner of the State of Illinois — that is to 
say; at a point in the centre of Lake Michigan, where the line of 
forty-two degrees and thirty minutes of north latitude crosses the 
same; thence, running with the boundary line of the State of Mich- 
igan, through Lake Michigan, Green Bay, to the mouth of the 
Menominie river; thence up the channel of the said river to the 
Brule river; thence up said last mentioned river to Lake Brule; 
thence along the southern shore of Lake Brule, in a direct line to 
the centre of the channel between Middle and South Islands, in 
the Lake of the Desert; thence in a direct line to the head waters 
of the Montreal river, as marked upon the survey made by Cap- 
tain Cramm; thence down the main channel of the Montreal river 
to the middle of Lake Superior; thence through the centre of 
Lake Superior to the mouth of the St. Louis river; thence up the 



40 CONSTITUTION OF WISCONSIN. [Art. II. 

main channel of said river to the first rapids in the same, above 
the Indian village, according to Nichollet's map; thence due south 
to the main branch of the river St. Croix; thence down the main 
channel of said river to the Mississippi; thence down the centre 
of the main channel of that river to the north-west corner of the 
State of Illinois; thence due east with the northern boundary of 
the State of Illinois, to the place of beginning, as established by 
"an act to enable the people of the Illinois Territory to form a 
constitution and State government, and for the admission of such 
State into the Union on an equal footing with the original States," 
Approved April 18, 1818. Provided, however, That the following 
alteration of the aforesaid boundary be, and hereby is proposed 
to the Congress of the United States as the preference of the 
State of Wisconsin, and if the same shall be assented and agreed 
to by the Congress of the United States, then the same shall be 
and forever remain obligatory on the State ■• of "Wisconsin, viz: 
leaving the aforesaid boundary line at the foot of the rapids of 
the St. Louis river; thence, in a direct line, bearing South- west- 
erly, to the mouth of the Iskodewabo, or Rum river, where the 
same empties into the Mississippi river, thence down the main 
channel of the said Mississippi river, as prescribed in the afore- 
said boundary. 

I. How the boundary can be changed. — 

These are now the boundaries of the state of Wiscon- 
sin. It is not likely that they ever will be changed; for, 
in order to change them, it is not enough for us to wish 
them changed ; Congress must also consent to the change, 
and so must the legislature of the other state or states 
concerned. For instance, if we should wish to have that 
part of Michigan that lies between Lake Superior and 
Lake Michigan annexed to this state, we must get the 
consent of the legislature of Michigan, and of Congress, 
as well as of our own legislature. Should any such 
change be made, it would be, really, an amendment to 
the Constitution; but it would not need to be formally 
amended in any of the ways prescribed by Article XII. 



SeC. 1.] BOUNDARIES. 41 

Under the United States Constitution (IV, 3), the con- 
sent of the legislatures of the states concerned, and of 
Congress, is enough. That would of itself amend this 
part of the Constitution, without any further action by 
the state of Wisconsin. 

II. Water boundaries not the true ones. — 

The boundary of "Wisconsin is commonly given as 
Lake Superior and the state of Michigan on the north, 
and Michigan and Lake Michigan on the east, and some- 
times, also, the Mississippi river is given as part of the 
western boundary. These boundaries are not the true 
ones. The state of Wisconsin extends to the center of 
Lakes Michigan and Superior; and to the center of the 
main channel of the Mississippi river. As the states of 
Wisconsin and Michigan meet in the center of Lake 
Michigan, it is not Lake Michigan that bounds Wiscon- 
sin on the east, but the state of Michigan, and so on. 
The correct boundary of Wisconsin in general terms, is 
as follow: Wisconsin is bounded north by Minnesota 
and Michigan, east by Michigan, south by Illinois, and 
west by Iowa and Minnesota. 

III. Boundaries narrower than originally intended. — 
Wisconsin being the last of the five states organized out of 
the Northwest Territory, received less territory than was orig- 
inally intended. In the original plan for organizing that ter- 
ritory into five states, Wisconsin was to have for its southern 
boundary a line drawn due west from the southern end of 
Lake Michigan, including what is now the great city of Chi- 
cago, and the best part of northern Illinois. She was to have 
what is now the northern peninsula of Michigan, and was to 



42 . CONSTITUTION OF WISCONSIN. [Art. II. 

-have the Mississippi instead of the St. Croix for the northern 
part of its western boundary. But one large and fertile tract 
of land was given to Illinois, another to Michigan, and still 
another was secured for what is now Minnesota, against the 
protest of the infant state. Enough, however, was left for a 
fair and fertile state. 



Section II. — Restrictions on State Jurisdiction. 

The propositions contained in the act of Congress are hereby ac- 
cepted, ratified and confirmed, and shall remain irrevocable with- 
out the consent of the United States; and it is hereby ordained 
that this State shall never interfere with the primary disposal of 
the soil within the same by the United States, nor with any regu- 
lations Congress may find necessary for securing the title in such 
soil to bona-fide purchasers thereof; and no tax shall be imposed 
on land, the property of the United States; and in no case shall 
non-resident proprietors be taxed higher than residents. Pro- 
vided, That nothing in this Constitution, or in the Act of Congress 
aforesaid, shall in any manner prejudice, or affect the right of the 
State of Wisconsin to five hundred thousand acres of land, granted 
to said State, and to be hereafter selected and located by and 
under the Act of Congress entitled "an act to appropriate the 
proceeds of the sales of the public lands, and grant pre-emption 
rights," Approved September fourth, one thousand eight hundred 
and forty-one. 

This section can be amended in either of the ways 
-prescribed in Article XII, if the consent of Congress is 
also obtained, but not otherwise. 

I. The title to land.— 

The title to land is of great importance, and in all 
civilized countries great pains are taken to make the 
titles to land secure. The United States has sold, or is 
still offering for sale, the greater part of the land in the 
state. Its patents for land are really warranty deeds. 
The United States guarantees to the purchaser a clear 



Sec. 2.] RESTRICTIONS ON JURISDICTION. 43 

title to tlie lands. Now, to avoid all trouble, and to 
make the title perfectly sure, Congress provides that the 
state shall never interfere with titles to land derived 
from the United States. Otherwise, it is possible that 
the state might at some future time have claimed 
that, when the United States ceded the territory to the 
new state of "Wisconsin, they ceded also the right to dis- 
pose of those titles. This is now forbidden by the law 
of Congress and by our Constitution. It is a fact, how- 
ever, that our legislature, like those of several other 
states, has tried to regulate the United States surveys, 
and correct the errors in them. These laws were, of 
course, unconstitutional, and have now been repealed. 

The titles to land in the state of Wisconsin all either come 
from the United States or are indorsed by the United States. 
The Indians were the original owners of the soil. But when 
America was discovered by Europeans, they held the Indians' 
ownership of little account. As between themselves, they 
finally determined that the nation which first discovered a 
tract of country should have the title to it, provided that the 
discovery was followed up by occupancy within some reason- 
able time. European nations had already recognized the fact 
that a title to land may be acquired by conquest in war, or by 
peaceful purchase. So that various nations gained title to 
land in America in some one or other of these three ways: 

1. Discovery, followed by occupation. 

2. Conquest. 

3. Purchase, or voluntary cession. 

It would be interesting to trace out the different nations in 
which the sovereign power over some part of the United 
States has been at some time vested, and the various processes 
by which the sovereign power, and with it the original title 
to land, and the right of eminent domain, has passed from 



44 CONSTITUTION OF WISCONSIN. [Art. II. 

one nation to another. But we can only take up now our own 
state. 

The original title to land in Wisconsin belonged, of course, 
to the Indians. This title was, however, disregarded by 
France, which claimed under the discoveries of the early ex- 
plorers, and the settlements made soon after at Green Bay and 
Prairie du Chien. The Wisconsin Indians acknowledged the 
sovereignty of France for a century and a half. In the great 
war known in American history as the Old French War, 
France was beaten and paid the costs of the war by ceding 
all her possessions in America to England. This included 
what is now Wisconsin. After the Revolutionary War, Eng- 
land in like manner ceded what is now Wisconsin to the new 
nation which had conquered its freedom. When the United 
States admitted Wisconsin to the Union, she was admitted as 
a sovereign state; and the United States gave to Wisconsin, by 
the act admitting her to the Union, the sovereign title to the 
land, with certain restrictions, which are embodied in our Con- 
stitution. Without counting the Indians, the territory em- 
braced in what is now the state of Wisconsin has passed 
through the following hands: 

1. France, by discovery and settlement. 

2. England, by conquest. 

3. The United States, by conquest. 

4. The state of Wisconsin, by peaceable cession. 

Now, at every change of sovereignty, the rights of private 
owners of land have been carefully guarded. 

There was no private ownership among the Indians, but the 
tribes have always sold their lands as tribes. 

A few patents for land were issued by the French govern- 
ment, and the rights of owners under them were guaranteed 
by the treaty of cession from France to England. A like 
guaranty was made in the treaty of cession from England to 
the United States, and a like guaranty is given in the act of 
Congress admitting Wisconsin to the Union, and confirmed by 
the clause in this Constitution forbidding interference with 
United States titles to land. 



Sec. 2.] RESTRICTIONS ON JURISDICTION. 45 

The original title to all the land in Wisconsin thus depends 
upon the guaranty of the United States. Every person who 
owns a foot of land in Wisconsin obtained it either from the 
state or United States, or from some person or series of per- 
sons, the first of whom received it from the state, the United 
States, England or France. It is therefore the interest of 
every person who owns land to defend the government which 
guarantees him possession of it. 

II. The primary disposition of the soil. — The land of the 
state, with some small exceptions, has been divided into town- 
ships, sections and fortj'-acre tracts by the United States gov- 
ernment. 

The division into townships depends upon the base line, 
which is the southern boundary of the state, from which all 
townships are numbered north, and the principal meridian 
from which all ranges of townships are numbered east or 
west, as shown on anj^ township map of the state. The "cor- 
rection lines" afford really new base lines as far as measure- 
ment is concerned, though the numbering is not begun over 
again at them. These correction lines are made necessary by 
the sphericity of the earth, causing the meridians to draw to- 
ward one another as we go toward the pole. If the first town- 
ship north of the base line is exactly six miles wide, and its 
east and west boundaries being each a true meridian, are ex- 
tended northward, the next township will be a little less than 
six miles wide, and so on till the discrepancy is so great that 
■a fresh start must be taken with townships again exactly six 
miles wide. 

The townships again are divided each into thirty-six sec- 
tions, which would be each exactly a mile square if the survey 
were always accurate, and if the surface of the earth were 
plane instead of convex. These sections are numbered, begin- 
ning at the northeast corner and going west and then east 
again, and so on back and forth and ending with section 
thirty-six in the southeast corner of the township. Section 
sixteen in each township was given by the United States to 



46 CONSTITUTION OP WISCONSIN. [Art. II. 

the state for the school fund, and is popularly known as the 
"school section." 

Each section is divided into quarter sections and then again 
into quarters of quarters, which should each contain forty- 
acres, except for the errors noted above. 

All deeds and mortgages of land, except city and village 
lots, give the description of the land in conformity with this 
survey. All state land when it is sold, is sold in forty-acre 
lots, described in conformity to the United States survey. The 
state thus conforms in every way to the primary disposition 
of the soil made by the general government. 

In the case of the old land grants near Green Bay which 
were made so many arpents wide on the Fox river and run- 
ning back from the river perpendicularly to it, and in the 
case of the towns of Stockbridge and Brothertown, which 
were laid off in tracts of fifty and one hundred acres for the 
Indians, the state recognizes these methods of survey also and 
does not interfere with the platting of the land as authorized 
by the United States. 

III. United States land not taxed. — 

Of course it would not be fair to tax the land that be- 
longs to the United States; for the government is hold- 
ing it for the general good, and not to make any profit 
out of it. Therefore Congress provided, and the state 
agreed, that the United States land should never be 
taxed. Neither can any tax be imposed on land owned 
by the United States for postofnces or for the soldiers* 
home. 

IV. No higher taxation for non-residents. — 

The clause that prevents the state from taxing non- 
resident proprietors higher than residents is put in be- 
cause that would be a way of interfering with the title to 



Art. III.] SUFFRAGE. 47 

property. The state could easily, were it not for this 

clause, tax non-resident proprietors so high that they 

would sell out cheap, or let their land be sold for taxes^ 

V. School land. — For more about the five hundred thous- 
and acres of land, see Art. X, Sec. 2. This land was given to 
the state by the United States, for the benefit of common 
schools, and the proceeds of its sale form a large part of the 
school fund of the state. 



ARTICLE III. 

SUFFRAGE. 

I. Our work thus far. — 

We have considered in the first two articles: 1- 
What the governing is for — to secure certain inherent 
rights to the people of Wisconsin; and 2. What is to 
be governed — all the land and the people upon it within 
fixed boundaries. 

We now come to the main body of the Constitution,. 
How the government is to be carried on-, and shall pro- 
ceed to study the machinery of the state government in 
the order given in the Constitution. 

II. Our government a representative democracy. 

Our. government is a democracy, or a rule of the peo- 
ple; but it is a representative democracy. The people 
rule, but they do not make or execute the laws directly. 

The people of Wisconsin cannot all leave their business and 
travel, some of them a long way, so as to get together in one 






48 CONSTITUTION OF WISCONSIN. [Art. III. 

place and make the laws. Even if they could do this, there 
would be too many of them to do the business of making- laws 
in any orderly way. And even if they made the laws, they 
would have to choose somebody to see that the laws were 
obeyed. It is impossible for the people all to get together in 
mass meeting and vote what they want done, and then do it. 
They must choose some one to make laws for them, and to 
execute those laws; that is, to represent the people. 

The form of every law, as prescribed by Article IV, Section 
17, is: "The people of the state of Wisconsin, represented in 
senate and assembly, do enact as follows." Our government 
is a representative government. It is not a pure democracy, 
nor, from the nature of the case, can it be. 

III. The first process of representation. — 

The first process of representation is, that the men 
over twenty-one years of age (with some few exceptions) 
represent the women and children and vote for them. 

This is not because women and children are not citizens; 
they are citizens, as we shall soon see. It is not because this 
government is an aristocracy of men, who rule the women and 
children against their will. The men do, on the average, fair- 
ly represent the women and children. Some men do not fair- 
ly represent the women and children of their own families; 
but most of them do. And the proof that they do is, that the 
mass of women neither rebel or petition against being repre- 
sented by the men; and do not wish to vote. 

Some women are not satisfied with this process of represen- 
tation, and are constantly at work to secure a change in this 
first process of representation, so that women shall represent 
themselves by voting, instead of being represented at the bal- 
lot box by the men. It is possible that some day they may 
succeed in carrying woman suffrage in this, as has been done 
in several states already. In that case, the men and women 
together would represent the children. Women now vote 
in school meetings and hold school offices. 



Sec. 1.] QUALIFICATIONS OF VOTERS. 49 

IV. The second process of representation. — 

The second process of representation is that the voters 

choose some of their own numbers to make the laws and 

others to execute them. 

This they do by meeting on election day in their own town, 
or village, or ward of a city, and each placing in a ballot box 
slips of paper, printed or written, with the names of the per- 
son each one wishes to have fill such and such offices. These 
■candidates for office are usually selected by caucuses and con- 
ventions of the political parties some time before election day. 
But there is nothing to prevent any one putting himself for- 
ward as an independent candidate, which is frequently done. 
And there is nothing to prevent any voter voting for any per- 
son he chooses, whether such person is a candidate or not. 
The voting is all done on one day, and the votes are then 
counted by the proper officers, and the result announced. 

Section I. — Qualifications op Voteks. 

Every male person of the age of twenty-one years or upwards, be- 
longing to either of the following classes, who shall have resided 
within the State for one year next preceding any election, and in 
the election district where he offers to vote such time as may be 
prescribed by the Legislature, not exceeding thirty days, shall be 
deemed a qualified elector at such election: 
1. Citizens of the United States. 

3. Persons of foreign birth, who shall have declared their inten- 
tion to become citizens, conformably to the laws of the United 
States on the subject of naturalization. 

3. Persons of Indian blood who have once been declared by law 
of Congress to be citizens of the United States, any subsequent 
•law of Congress to the contrary notwithstanding. 

4. Civilized persons of Indian descent, not members of any tribe. 
Provided, that the Legislature may, at any time, extend by law 

the right of suffrage to persons not herein enumerated; but no 
such law shall be in force until the same shall have been sub- 
mitted to a vote of the people at a general election, and approved 
by a majority of aU the votes cast at such election. 

And provided further, that in incorporated cities and villages, 
the Legislature may provide for the registration of electors, and 
prescribe proper rules and regulations therefor. 

[As amended Nov. 7, 1882.] 
Wis. Con.— 4. 



50 CONSTITUTION OF WISCONSIN. [Art. III. 

I. Classes of persons given the privilege of 
voting. — 

The following four qualifications are required of all 
voters : 

1. Male sex: This shuts out women. 

2. Twenty-erne years of age: This shuts out children. 
The exact age of twenty-one was taken because it is the 
age in England and America when a boy becomes legal- 
ly a man. 

3. One year's residence in the state: This shuts out 
new comers from other states or from foreign countries,, 
till they have had time to get some acquaintance with our 
laws and government. 

4. Some days 7 residence in the election district: This 
prevents persons voting where they do not have any real 
residence. 

A voter must also belong to one or the other of the 
following classes of persons : 

1. He must be a citizen of the United States, which 
may be either by birth or naturalization. 

2. Or he must be a foreigner who has taken out his 
"first papers.' 7 

3. Or if he is an Indian, he must be a civilized In- 
dian, or a member of a tribe once declared civilized by 
Congress, no matter whether they are so now or not. 
Civilized Indians living in the state, not on a reserva- 
tion, and not' receiving aid from the United States, may 
be made voters by ^wearing to that fact before the clerk 
of the court of their county. 



Sec. 1.] QUALIFICATIONS OF VOTERS. 51 

A voter must have all the first four qualifications and 
some one of the other three. 

II. Foreigners vote before they are citizens. — 

Under our Constitution, persons of foreign birth com- 
ing here may vote on the same terms as citizens, after 
taking out a paper declaring their intention to become 
citizens of the United States, which can be done at any 
time. In most states foreigners must become natural- 
ized in order to vote ; but it is not so here. 

Such voters, who have only declared their intention 
to become citizens, are eligible to all town and county 
offices, and to all state offices, except governor, lieuten- 
ant governor, and judge of the supreme or circuit courts. 

III. Registration of voters. — 

The registration of voters is done by preparing a list 
of voters in the village or in the ward of a city, some 
time before election day, and publishing that list for 
corrections. Persons not on that list can only vote by 
proving that they are voters. This is intended to pre- 
vent persons voting who are not entitled to do so. Such 
frauds are much more likely to occur in cities and vil- 
lages than in the country, where everybody is known to 
all his neighbors. 

IV. Extension of the suffrage. — 

The provision for extending the suffrage by a law 
ratified by a vote of the people, was intended to cover the 
case of negroes. The suffrage was actually extended to 



52 CONSTITUTION OF WISCONSIN. [Art. III. 

them under this provision of the Constitution. Under 
this provision women otherwise qualified have been 
given the right to vote at school elections. 

V. United States citizenship.— 

This subject is determined by the United States Con- 
stitution (Amendment XI Y) and by international law. 

Any person is a citizen of the United States who is 
born in this country, or has been naturalized here, and 
does not become a citizen of some other nation after- 
ward. 

VI. State citizenship. — 

State citizenship is not exactly the same as United 
States citizenship. There are four classes of citizens of 
the state of Wisconsin : 

1. Native born citizens of the United States, of all 
ages and both sexes, who reside in the state, whether 
whites, negroes or Indians. 

2. Naturalized citizens who reside in the state, in- 
cluding the families of men who have been naturalized, 
and including Indians made citizens by act of Congress, 
and civilized persons of Indian descent who have become 
citizens. 

3. Foreigners who have declared their intentions to 
become citizens of the United States, and who are other- 
wise qualified to vote, but not their families. This class 
are citizens of the state, but not of the United States. 

4. Indians who have once been made citizens by act 
of Congress, notwithstanding any repeal of that act. 



Sec. 2. J DISQUALIFICATIONS FOR VOTING. 53 

This was meant to apply to the Stockbridge Indians, 
who were all at one time partly civilized, and were there- 
fore made citizens by act of Congress. A part of them 
afterwards wished to go back to their savage state again, 
and be governed by their old tribal customs, instead of 
by the state laws; and an act of Congress was passed to 
that effect. When this Constitution was framed, this 
clause was inserted, so that these Stockbridge Indians 
could vote, just as if they were civilized. 

These last two classes of persons are citizens of the 
state, but not of the United States. They are citizens 
of the state; because they are voters. The supreme 
court has, however, decided that this privilege is to be 
construed strictly, and does not include their families. 
The sons of a foreigner, who has declared his intention 
to become a citizen of the United States, but who has not 
completed his citizenship by taking out his "second 
papers/' unless they were born in this country, are not 
voters until they have themselves taken out their first 
papers, after they come of age. Neglect or ignorance 
of this point of law has caused much trouble. 

Section II.— Disqualifications for Voting. 

No person under guardianship, non-compos mentis, or insane, shall 
be qualified to vote at any election; nor shall any person convicted 
of treason, or felony be qualified to vote at any election, unless 
restored to civil rights. 

I. Persons under guardianship. — 

A person may be placed under guardianship when it 
is evident that he cannot take care of himself — either 



54 . CONSTITUTION OF WISCONSIN. [Art. III. 

because of continual drunkenness, or idiocy or insanity. 

Non compos mentis means of "unsound mind" — an 
idiot or an insane person. 

It is plain that persons who cannot take care of them- 
selves cannot help to govern the state; and, therefore, 
ought not to vote. 

II. Traitors and felons. — 

Felony means, under our law, any state's prison of- 
fense. A traitor to our state or nation, of course, ought 
not to help govern it ; nor should a person who is so bad 
that he must be sent to state's prison; therefore, traitors 
and felons are not allowed to vote. Such persons may 
be restored to civil rights either by special act of the 
legislature or by the governor's pardon. 



Section III.— Voting by Ballot. 

AH votes shall be given by ballot, except for such township officers 
as naay by law be directed, or allowed to be otherwise chosen. 

I. Voting by ballot. — 

The reason for voting by ballot is that it gives an op- 
portunity for secrecy, and therefore for a more inde- 
pendent vote. Voters need not tell how they vote un- 
less they wish to do so. 

The time was when voting was done viva voce, that 
is, each voter declared to the judges of election the 
names of the persons for whom he voted, and the clerks 
of election wrote it down. Under this system there 



Sec. 3. J VOTING BY BALLOT. 55 

was less opportunity for frauds in counting the votes, 
but more opportunity for coercion of workmen by em- 
ployers. 

It was part of the great democratic revolution in the 
first half of this century that when the poorer classes 
were given the right to vote, they should be protected in 
that right by the secrecy of the ballot. 

II. The Australian ballot. — 

This method of voting by ballot originated in Aus- 
tralia, whence its name. It has been adopted with vari- 
ous modifications in most of our states. 

The form of the Australian ballot now in use in Wis- 
consin gives the nominees of the various parties in per- 
pendicular columns and the offices in horizontal lines. 
If a voter wishes to vote for all the candidates of one 
party, he must make a cross in the circle at the top of 
the proper column, where the name of the party is 
given. But if he wishes to vote for some candidates of 
one party and some of another or for independent nom- 
inations he must mark his ticket according to the in- 
structions given for that case, so as to show which can- 
didates he wishes to vote for. 

The original Australian ballot, which is in use in some 
states gives the names of all the candidates for each office in 
alphabetical order, compelling the voter to select each name 
he wishes to vote for. This is confusing to the voters where 
so many offices are to be filled at the same election. Conse- 
quently in most states, including Wisconsin, the list of offices 
and candidates is so arranged that the voter can vote for all 
the nominees of his own party if he wishes to do so by one 



56 CONSTITUTION OF WISCONSIN. [Art. Ill, 

mark. The effect of this is to encourage voting for the whole 
party ticket, while the effect of the original Australian ballot 
was to encourage independent voting. 
The advantages of both forms of the Australian ballot are: 

1. Greater secrecy. — All the ballots are printed by public 
officers, and one is given to each voter, and a secret place is 
provided for him in the voting booth in which he marks the 
ballot as he pleases. 

2. Greater freedom of voting. — No voter can have a ballot 
forced on him and be followed up to see whether he hands 
that ballot to the election officers. 

3. Less opportunity for bribing voters. — If there is no- 
way of learning how a man votes, it does not pay to bribe 
him, and then trust his word as to how he votes. 

4. Encouragement for education. — An illiterate or a blind 
voter is allowed to have help in marking his ballot, but illiter- 
ate voters are often ashamed to confess their ignorance. It 
is impossible to vote a large number of illiterate men by mere- 
ly handing them tickets and telling them to go and vote 
them. Now the tickets can only be obtained of the officers at 
the time of voting, and politicians must now educate their 
followers enough so that they shall be sure to mark their bal- 
lots right. 



Sections IV and V. — Questions of Residence. 

No person shall be deemed to have lost his residence in this State, 
by reason of his absence on business of the United States, or of 
this State. 

No soldier, seaman, or marine, in the Army or Navy of the United 
States shall be deemed a resident of this State, in consequence of 
being: stationed within the same. 

I. How residence not lost.— 

If it were not for this proviso in the Constitution, a 
United States officer, or a soldier, or a sailor, wonld lose 
his residence in this state while he was absent on United 



Sec. 6.] OTHER DISQUALIFICATIONS. 5T 

States business, and would have to live a year in the state 
when he came back, before he could vote. 

II. How residence not gained.— 

This has the same reason in it as the last provision. 
Soldiers, sailors or marines are citizens, not of the state 
where they happen to be stationed for the time, but of 
the state of which they were citizens when they entered 
the United States service. If they vote anywhere, they 
must vote there. One who is a citizen of this state, 
however, can vote here. 



Section VI. — Other Disqualifications. 

Laws may be passed excluding: from the right of suffrage aU per- 
sons who have been or may be convicted of bribery, or larceny,, 
or of any infamous crime, and depriving every person who shall 
make, or become directly, or indirectly interested, in any bet or 
wager depending upon the result of any election, from the right 
to vote at such election. 

A law has been passed which forbids any person con- 
victed of bribery from voting at any election, unless re- 
stored to civil rights. 

A law has been passed which forbids any person who 
is interested in a bet on an election from voting at that 
election. 

The Constitution also prohibits from voting at anv 
election any inhabitant of the state who is engaged in a> 
duel, either as principal or as accessory. (XIII, 2.) 



58 CONSTITUTION OF WISCONSIN. [Art. IV. 



ARTICLE IV. 

LEGISLATIVE. 

DEPARTMENTS OF GOVERNMENT. 

The government of the state of Wisconsin is divided 
into four departments : legislative, executive, administra- 
tive and judicial. This is one more department than is 
found in the government of the United States. In that 
the administrative is not separated from the executive, 
.as it is in the state government. 

The legislative department is the most important, 
because it makes the laws which are acted on by the 
other departments, and because, to a considerable extent, 
by those laws, it creates offices and confers powers upon 
them. 

The legislature represents the people, and therefore 
the style of all laws is: "The people of the state of 
^Wisconsin, represented in senate and assembly, do enact 
as follows." (Section 17.) 

Section I. — In Whom Legislative Poweb Vested. 

The legislative power shall be vested in a Senate and Assembly. 

The legislature of this state, like those of all other 
states of our Union, is organized after the model of the 
Congress of the United States; with two houses — the 
upper one, smaller in numbers, and elected for a longer 
term than the lower house. Bv this means the lower 



Sec. 3.] APPORTIONMENT. 59 

house will be likely to represent the wishes of the peo- 
ple, and the upper house will be likely to be more cau- 
tious in what they do, and oppose any very hasty and in- 
■considerate action of the lower house. 

The legislature has power to pass any laws not forbid- 
den by the state or United States Constitution ; and it has 
also power to repeal or amend any laws already passed. 

Section II. — Number of Members. 

The number of the members of the Assembly shall never be less 
than fifty-four, nor more than one hundred. The Senate shall 
consist of a number not more than one-third, nor less than one- 
fourth of the number of the members of the Assembly. 

The number of members of the first assembly, called 
under this Constitution, was sixty-six. The number of 
senators was then nineteen. (XIV, 12.) "We now have 
the largest number of both that the Constitution allows 
us, one hundred assemblymen and thirty-three senators. 

Section III. — Apportionment. 

The Legislature shall provide by law for an enumeration of the in- 
habitants of the State, in the year one thousand eight hundred 
and fifty five, and at the end of every ten years thereafter; and 
at their first session after such enumeration, and also after each 
enumeration made by the authority of the United States, the leg- 
islature shall apportion and district anew the members of the 
Senate and Assembly, according to the number of inhabitants, 
excluding Indians not taxed, and soldiers and officers of the United 
States Army and Navy. 

I. Legislative apportionment each five years. — 

The United States census is taken every ten years, in 
the years whose numbers end with zero. The state cen- 
sus is taken every ten years, in the years whose numbers 



60 CONSTITUTION OF WISCONSIN. [Art. IV. 

end with five. So that one census or the other is taken 

every five years. And, therefore, the state is districted 

for senators and assemblymen every five years. 

The reason for having- the apportionment twice as often 
as the apportionment for members of Congress, was that the 
state was being settled so fast that it mnst be re-districted 
quite often, or the new parts of the state wonld not have their 
fair share of assemblymen and senators. 

II. The basis of the apportionment. — 

The apportionment into legislative districts is based 
upon the number of inhabitants, so as to make the legis- 
lature represent the people as exactly as possible. 

Indians not taxed are not citizens of the United States, nor 
subject to their jurisdiction, and, therefore, ought not to be 
represented. United States soldiers and sailors who are not 
citizens of this state are not entitled to vote here (III, 5); 
therefore, neither of these classes is counted in apportioning 
members of the legislature. 

Section IV. — Elections for Assemblymen. 

The members of the Assembly shall be chosen biennially by single 
districts, on the Tuesday succeeding: the first Monday of Novem- 
ber, after the adoption of this amendment, by the qualified elect- 
ors of the several districts. Such districts to be bounded by county, 
precinct, town, or ward lines, to consist of contiguous territory, 
and be in as compact form as practicable. 

[As amended Nov. 8, 1881.] 

I. The legislature biennial. — 

The legislature originally met annually, and all the 
assemblymen and half the senators were elected each 
year. The legislature is now biennial and all the as- 
semblymen and half the senators are elected every sec- 



Sec. 4.] ELECTIONS FOR ASSEMBLYMEN. 61 

ond year in the even numbered years. The legislature 
meets in its regular session in January of each odd num- 
bered year. 

II. Election day. — 

The day of election, the Tuesday after the first Mon- 
day of November, is the same day as that of electing 
Congressmen and Presidential electors; and also the 
same day as that of electing all state officers. 

III. Qualified electors. — 

The qualified electors of a district are all those who 
have a right to vote in the state, and who reside in the 
district. 

IV. Rules for districting the state. — 

The assembly districts are to be bounded by county, 
precinct, town or ward lines, because these are the lines 
that divide the voting districts. It would make a great 
deal of confusion and useless trouble if two or three dif- 
ferent sets of officers were voted for at the same time 
and place. 

It is provided that the assembly districts shall be in 
as compact form as practicable, for the sake of conven- 
ience, and also, as far as possible, to prevent the legis- 
lature from so arranging the districts as to give an unfair 
advantage to either political party. 

V. Assembly districts. — 

It has been decided by the supreme court of the state 
that an assembly district cannot consist of parts of two 



62 CONSTITUTION OP WISCONSIN. [Art. IV. 

counties. When a county is too small to form an as- 
sembly district, it must be grouped with, some other 
small county which is contiguous. When a county is- 
too large for an assembly district it must be divided into 
two or more districts. And in forming these districts, 
precincts, towns and wards must not be divided. About 
one-half of the counties are thus assembly districts, in 
consequence of the population of each being somewhere 
near one hundredth part of that of the state. The op- 
portunities for gerrymandering the districts are thus 
greatly reduced. 

Section V. — Elections for Senators. 

The Senators shall be elected toy single districts of convenient con- 
tiguous territory, at the same time and in the same manner as- 
members of the Assembly are required to be chosen, and no As- 
sembly district shall be divided in the formation of a Senate dis- 
trict. The Senate districts shall be numbered in regular series, 
and the Senators shall be chosen alternately from the odd and 
even-numbered districts. The Senators elected or holding over at 
the time of the adoption of this amendment, shall continue in 
office till their successors are duly elected and qualified. And 
after the adoption of this amendment, all Senators shall be chosen 
for the term of four years. 

[As amended Nov. 8, 1881.] 

I. Single districts. — 

It is provided that assemblymen and senators shall 
both be elected by single districts. It was the rule un- 
der the territory of Wisconsin to give each county its 
proper number of members of the council and house of 
representatives, according to its population, and to elect 
them all on one general ticket for the county. This is 
still the practice in several states. But the system of 



Sec. 7.] ELECTIONS AND QUORUM. 63- 

single districts was adopted in the Constitution at a time 
when other states were changing to that system. 

II. Assembly districts not divided. — 

Eo assembly district can be divided in the formation 
of senate districts. As there are 33 senate districts and 
100 assembly districts nearly every senate district will 
consist of three assembly districts. County lines may,. 
however, be broken in forming senate districts. A 
county which has two assembly districts may have these 
assembly districts placed in different senate districts. 

III. Term of office.— 

The term of office of a senator is twice that of an as- 
semblyman, that is, four years. Half the senators go out 
each two years. This makes the senate a continuous 
body. 

Section VI. — Eligibility to the Legislatuke. 

No person shall be eligible to the Legislature "who shall not have 
resided one year ■within the State, and be a qualified elector in 
the district which he inay be chosen to represent. 

A member of the legislature must be a voter and a res- 
ident of the district which he represents. He need not 
be a citizen of the United States or have any property 
or educational qualification. 

Section VII. — Elections and Quorum. 

Each House shall be the judge of the elections, returns and quali- 
fications of its own members, and a majority of each shall consti- 
tute a quorum to do business: but a smaller number may adjourn 
from day to day, and may compel the attendance of absent mem- 
bers in such manner, and under such penalties, as each House 
may provide. 



•64 CONSTITUTION OF WISCONSIN. [Art. IV. 

I. Each house the sole judge of the election of 

its members. — 

If there is any question as to whether any person 
elected to either house of the legislature was legally 
elected, the house to which he claims to belong must 
judge of the facts in the case. If he was elected by 
fraud, or if false returns were made declaring that he 
had the majority, when he did not really have it; or if 
he is not legally qualified to be a member of that house, 
then the assembly or the senate, as the case may be, is 
bound to reject him. But each house is the sole judge 
of the elections and qualifications of its members. If it 
decides wrongly, there is no remedy under the Constitu- 
tion. The election or qualification of a senator or as- 
semblyman cannot be inquired into by the courts under 
a writ of quo tvarranto, as can that of a state or county 
officer. (VII, 3.) 

II. A quorum to do business. — 

A quorum is a sufficient number to do business. The 
Constitution provides that at least half the members of 
either house must be present before any business can be 
done; that is, a majority makes a quorum. But if there 
was no exception to this, it might frequently happen that 
there would be no quorum; because a majority of the 
members might stay away, either through carelessness 
or purposely, to prevent any business being done. The 
■Constitution, therefore, provides that any number of 
members may meet and call the roll and adjourn again, 



SeC. 8.] POWER TO ENFORCE ORDER. 65 

so as to keep up the organization; and they may, if nec- 
essary, arrest the absent members, and compel them to 
come in, and thus make a quorum. The sergeant-at- 
arms of each house, with his assistants, is always sent to 
arrest absent members. 

Upon the final passage of any financial bill, three-fifths of 
all the members elected to either house are required to con- 
stitute a quorum. (VIII, 8.) 

Section VIII.— Power to Enforce Order. 

Each. House niay determine the rules of its own proceedings, pun- 
ish for contempt and disorderly behaviour, and with the concur- 
rence of two-thirds of aU the members elected, expel a member; 
but no member shall be expelled a second time for the same cause. 

I. The rules of each House. — 

The rules of each house may be found in the Blue 
Book. They are very nearly the same as those adopted 
by other state legislatures and by Congress. Many of 
these rules are adopted by all public meetings, and by 
societies of every sort. Others of them are only fitted 
for law-making bodies, and therefore are only adopted 
by legislatures and by Congress. Together, these rules 
are called the rules of parliamentary practice, because 
they gradually grew up in the practice of the English 
Parliament, from which they have been adopted, with 
slight changes, by every legislative body in the United 
States. 

Under the Constitution, either the senate or assembly 
can alter any of these rules, or make new ones for itself, 

Wis. Con.— 5. 



66 CONSTITUTION OF WISCONSIN. [Art. IV. 

whenever it chooses. And the rules of the senate and 
of the assembly need not be the same. Each house 
makes its own rules. 

II. Power to punish for disobedience. — 

Rules would be of no use unless there was some power 
to enforce them and to punish for disobedience. There- 
fore, each house has the right, not only to make the rules 
of its own proceedings, but to punish those who violate 
these rules. And this power extends to any one, 
whether a member of the house or not, who disturbs its 
proceedings, or who is guilty of what is called "con- 
tempt.' 7 

This power is the same as that which all courts of law ex* 
ercise. If any one should refuse to testify before a committee 
of the legislature when he is summoned to do so, that woultf 
be "contempt." Or if any one, whether a member or not, 
should insult either house by words or actions done in the 
presence of the house, or should refuse to obey any proper 
command of the officer's of either house, it would be ''con- 
tempt." But it would not be considered contempt to say or 
to write or print anything, however severe, against the legis- 
lature, anywhere else. To punish any one for words spoken 
or published outside the legislature itself, would be to violate 
the freedom of speech guaranteed by Art. I, Sec. 3, of this 
Constitution. An attempt to bribe a member, or to threaten 
him into supporting or opposing any measure before the legis- 
lature, is "contempt." An attempt to arrest a member of the 
legislature, contrary to section 15 of this article, is "con- 
tempt." 

The punishments which either house of the legislature 
can inflict for contempt or disorderly behavior are repri- 



Sec. 9.] officers. 67 

mand, fine and imprisonment, and for members, expul- 
sion. 

III. The power to expel members. — 

Each house has the right to keep up its moral charac- 
ter and its respectability, by expelling members who are 
notoriously unworthy. But this power might easily be 
abused for partisan purposes. Therefore, it is guarded 
by two provisions : first, to expel a member requires the 
votes of two-thirds of all the members elected; and sec- 
ond, if the expelled member should be re-elected, he can- 
not be expelled a second time for the same offense. 

Section IX. — Officers. 

Each House shall choose its own officers, and the Senate shall 
choose a temporary president, when the Liieuteuant-Governor 
shall not attend as president, or shall act as Governor. 

I. The officers of each House. — 

The officers of the senate are the president, chief clerk 
and sergeant-at-arms. (XIII, 6.) The officers of the 
assembly are the same, except that the presiding officer 
is called the speaker. These officers are elected by each 
house, except the president of the senate when the lieu- 
tenant governor fills that place. Besides these there 
are a large number of additional employes. 

II. The president of the Senate. — 

The lieutenant governor is, by virtue of his office, 
president of the senate (V, 8), but he cannot act as gov- 
ernor and as lieutenant governor at the same time. 
When he acts as governor, or in any other way vacates 



68 CONSTITUTION OF WISCONSIN. [Art. IV. 

Iris office, or is absent from the session of the 
senate, there must be somebody to act as the presid- 
ing officer of the senate. The senate, therefore, elects a 
temporary president from its own members in such cases, 
and it has become the practice for the senate at the be- 
ginning of the session to elect a president pro tempore, 
who presides whenever the lieutenant governor is ab- 
sent. 

III. Committees. — 

All bills must under the rules be referred to appro- 
priate committees. For a list of the committees of each 
house see the Blue Book. In the assembly the com- 
mittees are appointed by the speaker. In the senate 
they are elected by the senate on the recommendation 
of a nominating committee. There are several joint 
committees composed of members from both houses. 
All bills containing appropriations after they have been 
reported from other committees must under the rules 
be sent to the joint committee on claims. Special com- 
mittees are sometimes appointed for investigations, or to 
consider certain bills. 

Section X. — Publicity op Proceedings. 

Each House shall keep a journal of its proceedings and publish the 
same, except snch parts as require secrecy. The doors of each 
House shall be kept open except when the public welfare shall 
require secrecy. Neither House shall, without consent of the 
other, adjourn for more than three days. 

I. Publicity of proceedings. — 

Each bouse must keep a journal of its proceedings, 



Sec. 10.] PUBLICITY OF PROCEEDINGS. 69 

and publish it, for two reasons: first, for convenience, so 
that it can be referred to when needed, to see what busi- 
ness has been done, and what still remains to be done; 
and second, for public information. Keeping the doors 
of each house open answers the latter purpose also. Any 
one who chooses can listen to the debates, and, moreover, 
the reporters of the daily papers make every one who 
reads their reports virtually a hearer of the debates and 
votes. By these means, the people watch their repre- 
sentatives. 

But it may happen, in case of war or sedition, that the 
public safety requires secrecy; and there may possibly be 
some other cases in which it would not be well to have the 
proceedings made public at once. In such a case an exception 
may be made to the general rule of publicity, and either 
house may sit with closed doors, and refuse to publish its pro- 
ceedings. 

II. Separate adjournment. — 

If either house could adjourn when it pleased, for any 
length of time, one house or the other might stop all 
business. Like a balky team, first one and then the other 
might refuse to pull. But as the members of our legis- 
lature are now paid a salary, instead of so much a day, 
it is their interest to finish business as fast as possible, 
instead of adjourning from day to day, to hinder legis- 
lation. 

An adjournment for two or three days is frequently 
made, so that members can go home and stay over Sun- 
day, or over some holiday. But for an adjournment of 



70 CONSTITUTION OF WISCONSIN. [Art. IV. 

more than three days, a joint resolution, passed by both 
houses, is necessary. 

Section XI.— Sessions. 

The ^Legislature shall meet at tlie seat of government, at such, time 
as shall be provided by law, once in two years, and no oftener, 
unless convened by the Governor in special session; and when so 
convened, no business shall be transacted except as shall be neces- 
sary to accomplish the special purposes for which it was convened. 
[As amended Nov. 8, 1881.] 

The time for the meeting of the legislature is the sec- 
ond Wednesday in January. The legislature may ad- 
journ to meet at a later date, this being a continuation of 
the same session. But when it has finally adjourned it 
can only be convened by the governor in special session. 
In that case it can do no business except that named in 
the governor's call. Members receive no extra pay for 
adjourned or special sessions, but they do collect mileage 
for such sessions. 

Section XII. — Restrictions on Members. 

No member of the Legislature shall, during the term for which he 
was elected, be appointed or elected to any civil office in the 
State, which shall have been created, or the emoluments of which 
shall have been increased, during the term for which he was 
elected. 

This provision is intended to prevent any influential 
member of the legislature having an office created or 
made more valuable, and then securing his own appoint- 
ment or election to that office. 

It is only civil office, however, which is thus restricted; for 
it might easily happen, as it did during- our civil war, that the 



Sec. 14.] VACANCIES. 71 

services of some members of the legislature are needed in 
military offices. 

A member cannot evade this provision by getting an office 
created and then resigning his place in the legislature to ac- 
cept the office, because the prohibition covers the whole term 
for which he was elected. 



Section XIII. — Restrictions on Eligibility. 

No person being a member of Congress, or holding any military or 
civil office under the United States, shall be eligible to a seat in 
the ^Legislature, and if any person shall, after his election as a 
member of the Legislature, be elected to Congress, or be ap- 
pointed to any office, civil or military, under the government of 
the United States, his acceptance thereof shall vacate his seat. 

This is meant to make the members of the legislature 
entirely independent of federal influence. They are to 
represent this state — -not the United States. A member 
of Congress, or a federal office-holder, would be likely to 
be influenced by the United States government. 

There is a further provision (XIII, 3) which prohibits any- 
United States officers (except postmasters), or the officers of 
any foreign power, from holding* any office under this state. 
By comparing these two sections, we see that postmasters 
may hold any office under the state; but cannot be elected to 
the legislature. Strictly speaking, the members of the leg- 
islature are not officers of the state, but representatives. 

Section XIV.— Vacancies. 

The Governor shall issue writs of election to fill such vacancies as 
may occur in either House of the Legislature. 

Vacancies in the legislature may occur through death, 
resignation or expulsion, or acceptance of a seat in Con- 
gress or a United States office. When a vacancy occurs 



72 CONSTITUTION OF WISCONSIN. [Art. IV. 

the governor must set a day for a new election. The 
person elected on that day holds office for the unexpired 
term only. 

Section XV. — Privileges oe Members. 

Members of the Legislature shall in all cases, except treason, fel- 
ony and breach, of the peace, be privileged from arrest; nor shall 
they be subject to any civil process, during the session of the 
Legislature, nor for fifteen days next before the commencement 
and after the termination of each session. 

This is a privilege granted to the members of all legis- 
lative bodies in this country and in Europe so that they 
shall not be prevented from attending to their duties as 
members for trivial causes. 



Section XVI. — Legislative Freedom oe Speech. 

No member of the Legislature shall be liable' in any civil action, or 
criminal prosecution whatever, for words spoken in debate. 

This is also a privilege given to the members of all 
legislative bodies everywhere. There must be complete 
freedom of speech about measures and about men, in 
the debates of the legislature, so that the public good 
shall be best subserved. 

Section XVII. — The Style oe the Laws. 

The style of the laws of the State shall be " The people of the State 
of Wisconsin, represented in Senate and Assembly, do enact as 
follows:" and no law shall be enacted except by bill. 

I. The style of the laws. — 

All the laws of Wisconsin begin in these words: 
"The people of the state of Wisconsin, represented in 



Sec. 18.] PEIVATE AND LOCAL BILLS. 73 

senate and assembly, do enact as follows." The form 
in which every law must begin, thus shows that the legis- 
lature is to represent the people of the state. 

II. All laws by bill.— 

The Congress of the United States frequently passes 
joint resolutions of both houses, which have the effect 
of laws. These must, however, be signed by the Presi- 
dent in the same way as bills. But this is forbidden 
to the Wisconsin legislature by this section. All laws 
must be passed in the form of bills. But amendments 
to the Constitution are passed in the form of joint res- 
olutions. So also are memorials to Congress. And 
either house, or both together, may pass any resolutions 
they choose that only express their opinions, without 
having the force of laws. Such resolutions, not being 
laws, do not need the governor's signature. 

Section XVIII.— Private and Local Bills. 

No private or local bill which, may be passed by the Legislature 
shall embrace more than one subject, and that shall be expressed 
in the title. 

This is to prevent three practices very common in 
Congress and in many state legislatures. The first is 
that of tacking some private or local bill, which could 
not pass if attention was called to it, on some other bill 
to which nobody has any objections, and thus slipping 
it through the various readings and votes before it is 
noticed. The second is the practice of combining sev- 



-74 CONSTITUTION OF WISCONSIN. [Art. IV. 

eral private or local schemes in one bill, and thus each 
getting the support of all the members who would sup- 
port any one of them. The third is the practice of 
slipping through objectionable measures by an innocent 
looking title that does not call attention to the main ob- 
ject of the bill. 

The amendment to this article (Sections 31 and 32) stops a 
great deal of this special legislation, but this section still ap- 
plies to all local or private bills that are not prohibited by 
that amendment. 



Section XIX. — Bills May Originate in Either House. 

-Any bin may originate in either House of the Legislature, and a 
bill passed by one House may be amended by the other. 

In Congress all bills for raising revenue must origi- 
nate in the House of Representatives. This restriction 
is abolished for our state legislature, and bills may origi- 
nate, that is, be first brought in and passed, in either 
house. 

If a bill that passes one house is amended in the other, 
it is sent back to the house in which it originated, where the 
amendment is considered. If this house concurs in the 
amendment, both houses are then agreed on the bill, and it 
goes to the governor for his signature or veto. But if the first 
house does not concur in the amendment, a committee of con- 
ference may be appointed from each house, who meet and try- 
to come to some agreement, until both houses either agree on 
something, or find that they cannot agree. In this latter case, 
of course, the bill is lost. 



Sec. 20.] TIIE YEAS AND NAYS. 75 

■Section XX. — The Yeas and Nays. 

The yeas and nays of the members of either House, on any ques- 
tion, shall, at the request of one-sixth of those present, be entered 
on the journal. 

When the yeas and nays are called for, if one-sixth of 
"those present concur in the call, the roll of members is 
called over by the clerk, and each member who is pres- 
ent answers in his turn, "aye" or "no." The names of 
those voting on each side of the question are recorded 
by the clerk in the journal, and published. The yeas 
and nays are very frequently called for, and the result 
is always published in the leading newspapers, so that 
any one who chooses to know, can always tell how any 
member of the legislature voted on any important ques- 
tion. 

The yeas and nays must be taken in the following cases: 

1. In each house, upon the passag-e of a bill creating- a state 
debt. (VIII, 6.) 

2. In each house, upon the passage of any financial meas- 
ure. (VIII, 8.) 

3. In each house, upon the passage of a bill over the gov- 
ernor's veto. (V, 10.) 

4. In each house, upon the passag-e of a proposed amend- 
ment to the Constitution. (XII, 1.) 

In these cases it is only upon the final passage of these 
measures that the vote must be taken by yeas and nays, and 
entered upon the journal. 

5. But the yeas and nays may be called for upon any vote 
that is taken upon any question; and if the call is sustained 
by one-sixth of those present, the vote must be taken by yeas 

-and nays and entered upon the journal. (IV, 20.) 



76 CONSTITUTION OF WISCONSIN. . [Art. IV. 

6. All elections made by the legislature must be made by a 
viva voce vote, which is similar to the vote by yeas and nays, 
the only difference being- that each member announces the 
name of the candidate for whom he votes, instead of saying 
"aye" or "no." In both cases the votes are entered upon the 
journal. (IV, 30.) The only exception to this is in case an 
election for governor should go to the legislature, in which 
case the election is by joint ballot. (V, 3.) 



Section XXI. — Compensation op Members. 

Each member of the Legislature shall receive for his services for 
and during: a regular session the sum of five hundred dollars, and 
ten cents for every mile he shall travel in going to and returning 
from the place of meeting of the Legislature, on the most usual 
route. In case of an extra session of the Legislature, no addi- 
tional compensation shall be allowed to any member thereof, 
either directly or indirectly, except for mileage, to be computed 
at the same rate as for a regular session. No stationery, news- 
papers, postage, or other perquisites, except the salary and mile- 
age above provided, shall be received from the State by any mem- 
ber of the Legislature for his services, or in any other manner, as 

such member. 

[As amended Nov. 8, 1881.] 

As the members now receive a stated salary, it is 
their interest to get through with business as soon as 
possible, and it is not their interest to have extra ses- 
sions. 

The mileage is to be calculated upon the most usual route, 
to prevent members going a long distance out of their way on 
business or for pleasure, and getting mileage for that extra 
travel. 

Stationery and other perquisites are forbidden, to prevent 
some abuses which had grown up by which members virtually 
added to their salary. By the amendment to this section the 
salary is increased and the perquisites cut off. 



Sec. 22. ] powers op county boards. 77 ' 

Section XXII. — Powers of County Boards. 

The Legislature may confer upon the boards of supervisors of the 
several counties of the State, such powers of a local, legislative 
and administrative character, as they shall from time to time 
prescribe. 

I. The organization of county boards of super- 

visors. — 

The board of supervisors consists now in each county 

' of the chairmen of the town boards and a supervisor 

elected by each incorporated village and by each ward 

of a city. They elect their own chairman, and the 

county clerk acts as their clerk. 

II. Powers of county boards of supervisors.— 
The legislature has given the boards of supervisors a 

great many powers of a local character, of which only 
a few of the most important can be here specified: 

1. They have charge of all the buildings and other property 
of the county. 

2. They examine and settle all accounts against the county. 

3. They fix the salaries of county officers, within the limits 
prescribed by law. 

4. They apportion taxes among the various towns, villages 
and cities in the county, and they levy all taxes needed to 
pay the expenses of the county government. 

5. They may change the name of any person, town or village 
in the county. 

6. They may change the boundaries of any town or village 
in the county. 

7. They may incorporate literary, benevolent, charitable and 
scientific institutions. 

8. They may grant charters for ferries and plank and turn- 
pike roads, and fix the rates of toll. 

9. They may take charge of the poor relief if they choose to 



78 CONSTITUTION OF WISCONSIN. [Art. IV. 

do so, erect a poor house and elect superintendents of the 
poor. 

10. They may erect a county asylum for the chronic insane- 

11. They may erect a workhouse for tramps and other minor 
offenders. 

III. The sessions of county boards. — 

All county boards hold their annual meetings on the* 
Tuesday after the second Monday in November in each 
year. In many counties special or adjourned sessions- 
are also held. 

Section XXIII. — Town and County Government. 

The Legislature shall establish bat one system of town and county- 
government, which shall be as nearly uniform as practicable. 

I. The system of county government. — 

Like the state government, the county government 
consists of legislative, executive, administrative and ju- 
dicial officers. 

The board of supervisors is the county legislature,, 
with the powers named in the notes to the last section. 

The executive officers of a county are sheriff and cor- 
oner. 

The administrative officers are clerk, treasurer, regis- 
ter of deeds, surveyor, district attorney and school super- 
intendent. 

The judicial officers are county judge, clerk of the cir- 
cuit court, and one or more court commissioners. 

II. The system of town government. — 

The town government is simpler than either county,, 
state or national. The legislature consists of all the 



SeC. 23.] TOWN AND COUNTY GOVERNMENT. 79 

voters in the town, who meet on the first Tuesday in 
April, hear reports of officers, vote taxes for schools, 
for roads and bridges, for the poor, and for snch other 
town purposes as may be necessary; make such orders 
and by-laws for governing the town as they think neces- 
sary, and elect the following officers by ballot: 

1. A town board of supervisors, consisting of three 
members, who enforce all orders and by-laws of the 
town, audit all accounts, fill all vacancies in town of- 
fices, and act as trustees of the town property. The 
chairman, or in his absence one of the other super- 
visors, represents the town in the county board. 

2. A town clerk. 

3. A town treasurer, who collects taxes and keeps the 
money of the town subject to the order of the super- 
visors. 

4. An assessor, who makes a list of all the taxable 
property in the town, with the value of it. 

5. Four constables. 

6. Four justices of the peace, of whom two are elected- 
every year. 

The town government is almost a pure democracy.. 
The voters of each town assemble and discuss all matters 
of common concern, and decide them by a majority vote.. 
But it is found to be impossible, even in so small a ter- 
ritory as a single town, for the voters in a body to do all 
the administrative, executive, and judicial business of 
the town. For this they have to elect officers; but th&- 
voters are themselves the legislature of the town. 



80 CONSTITUTION OF WISCONSIN. [Art. IV. 

III. The system to be uniform. — 

This system of town and county government has been 
changed several times by the legislature. County su- 
perintendents of schools have been substituted for town 
superintendents; the composition of the county board of 
supervisors has been twice changed; but these changes 
have been uniform throughout the state. Whenever 
the legislature has given one county a system of gov- 
ernment in any respect different from the rest, the su- 
preme court has decided the act to be unconstitutional. 



Section XXIV. — Lotteries and Divorces. 

The Legislature skaU never authorize any lottery, or grant any 

divorce. 

I. Lotteries. — 

The Constitution prohibits all lotteries. The legisla- 
ture can neither itself legalize a lottery nor give power 
to any state, county, city, village or town officers to au- 
thorize a lottery. What the legislature cannot do it- 
self, it might be constitutional for it to empower some 
one else to do, as is the case with divorces, which the 
legislature itself cannot grant, but which it has author- 
ized circuit judges to grant. But in this case, the legis- 
lature is not allowed to authorize sl lottery. To allow 
anybody else to give power for a lottery, would be just 
as much an authorizing of lotteries as if the legislature 
should itself grant licenses to them, only it would be 
doing it indirectly instead of directly. 



Sec. 25.] STATE PRINTING. 81 

II. Divorces. — 

Divorces are granted by the circuit judges at the reg- 
ular term of court, for the causes named in the laws. 
The legislature cannot itself grant any divorce, but it has 
passed a general law under which divorces can be 
granted by the courts, for certain specified causes. 

Section XXV.— State Printing. 

The Legislature shall provide hy law, that all stationary required 
for the use of the State, and all printing authorized and required 
by them to be done for their use, or for the State, shall be let by 
contract to the lowest bidder, but the Legislature may establish 
a maximum price: No member of the Legislature, or other State 
Officer shall be interested, either directly or indirectly, in any 
such contract. 

This is to prevent any frauds in the state printing. 
It cannot be given as a reward for party services, but 
must be given to the person who will do the work the 
cheapest. "A maximum price" means the highest price 
which will be given. The legislature may say that no 
more than so much will be paid in any case, to prevent 
a combination of printers to keep prices up. The ac- 
tual prices paid for several years have been about half 
the maximum fixed by law. 

Members of the legislature and state officers are for- 
bidden to have any interest in contracts for state print- 
ing, so that there shall be no suspicion of any corrupt 
bargains, or fraud of any kind. 

Wis. Con— 6. 



82 CONSTITUTION OF WISCONSIN. [Art. IV. 

Section XXVI. — Compensation oe Ofeicees and 
Contractors. 

The Legislature shall never grant any extra compensation to any- 
public officer, agent, servant, or contractor, after the services shall 
have been rendered, or the contract entered into. Nor shall the 
compensation of any public officer be increased, or diminished dur- 
ing his term of office. 

This is to make public officers and contractors en- 
tirely independent of the legislature. Having nothing 
to hope or fear in the way of salary, they will be more 
likely to do their work faithfully. 

Section XXVII.— Suits Against the State. 

The Legislature shall direct by law in what manner and in what 
courts, suit may be brought against the state. 

It has been provided by law that no person can sue 
the state for any claim he has against it, until he has 
presented it to the legislature and they refuse to allow 
it. He must notify the attorney general, who is the 
state's lawyer and who must defend the state in the 
trial of the case. The case is tried before the supreme 
court so far as the law of the case is concerned. If the 
facts have to be proved, the case is sent down to some 
circuit court where it is tried before a jury, who decide 
upon the facts, as in any civil suit, and their judgment 
is sent up to the supreme court, and a verdict rendered 
in accordance with the facts as decided by the jury, and 
the law as interpreted by the supreme court. Wiscon- 
sin is the only state which provides for suits against the 
state and for judgments to be given by the courts 
against the state. 



Sec. 30.] ELECTIONS BY THE LEGISLATURE. 83 

Section XXVIII. — Oath of Office. 

Members of the [Legislature, and all officers, executive and judicial, 
except such, inferior officers as may be by law exempted, shall 
before they enter upon the duties of their respective offices, take 
and subscribe an oath, or affirmation to support the Constitution 
of the United States, and the Constitution of the State of Wiscon- 
sin, and faithfully to discharge the duties of their respective 
offices to the best of their ability. 

The oath is taken unless the officer has conscientious 
scruples against taking an oath; in that case, he simply 
affirms instead of swearing. 

Section XXIX. — State Militia. 

The Legislature shaU determine what persons shall constitute the 
militia of the State, and may provide for organizing and disciplin- 
ing the same, in such manner as shall be prescribed by law. 

In theory, all the able-bodied males in the state, 
between the ages of eighteen and forty-five, who are 
not specially exempted, belong to the state militia. In 
actual practice, the state militia consists of the gov- 
ernor's staff and the companies and regiments of the 
Wisconsin National Guard. 



Section XXX. — Elections by the Legislature. 

In all elections to be made by the Legislature, the members thereof 
shall vote viva-voce, and their votes shall be entered on the 
journal. 

The legislature elects the United States Senators from 
this state, and each house elects its own officers, except 
the president of the senate, when the lieutenant gov- 
ernor fills that place. 



84 CONSTITUTION OF WISCONSIN. [Art. IV. 

The elective officers of each house are : for the senate, 
the president pro tern., chief clerk and sergeant-at-arms; 
and for the assembly, the speaker, chief clerk and ser- 
geant-at-arms. (XIII, 6.) The other officers are ap- 
pointed. 

Viva voce means, literally, "with the living voice." 
A viva voce vote is one in which those who vote do so 
with their voice, not by ballot, or by a show of hands, 
or by rising. 

The object of having a vote viva voce, and having 
each vote entered on the journal, is to make it public, 
and, therefore, as fair as possible. 

Section XXXI. — Special Legislation Forbidden. 

The Legislature is prohibited from enacting any special or private 
laws in the following cases: 1st. For changing the name of per- 
sons, or constituting one person the heir-at-law of another. 2d. 
For laying out, opening or altering highways, except in cases of 
state roads, extending into more than one county, and military 
roads, to aid in the construction of which lands may he granted 
by Congress. 3d. For authorizing persons to keep ferries across 
streams, at points wholly within this state. 4th. For authoriz- 
ing the sale or mortgage of real or personal property of minors 
or others under disability. 5th. For locating or changing any 
county seat. 6th. For assessment or collection of taxes, or for 
extending the time for the collection thereof. 7th. For granting 
corporate powers or privileges, except to cities. 8th. For author- 
izing the apportionment of any part of the school fund. 9th. For 
incorporating any city, town or village, or to amend the charter 

thereof. 

[As amended Nov. 8, 1892.] 

All these cases can be better provided for, each by a 
general law which will cover all cases that will arise, 
than they would be by having the legislature pass a 
special law for every particular case. 



Sec. 32.] GENERAL LEGISLATION REQUIRED. 85 

For instance, it is a great deal better to give the business 
of changing people's names to the county board or the county 
judge, and not trouble the legislature with it. The result of 
special legislation always is to cause corruption and bribery 
of members and indiscriminate haste in passing laws, and to 
burden the statute books with a great number of private and 
local laws. The legislature is made the theater of contending 
local or private interests, to the exclusion of measures of great 
public utility, but in which no one is pecuniarily interested. 
The experience of this and other states has, therefore, shown 
that the public good will be best promoted by excluding as 
much special legislation as possible. 

In addition to the nine cases named in Section 31, the Con- 
stitution forbids special laws in the following cases: 

1. No bill of attainder can be passed; that is, a bill punish- 
ing particular persons by name. (I, 12.) 

2. No preference can be given by law to any particular re- 
ligious establishment or mode of worship. (I, 18.) 

3. There can be but one system of town and county govern- 
ment. (IV, 23.) 

4. The legislature can grant no divorce. (IV, 24.) 

5. The state printing must be given to the lowest bidder. 
(IV, 25.) 

6. Officers cannot receive extra pay. (IV, 26.) 

7. The rule of taxation must be uniform. (VIII, 1.) 

8. The supreme court has decided that acts of the legisla- 
ture exempting particular persons or corporations from any 
general law are void. 

Section XXXII. — General Legislation Required. 

The Legislature shall provide general laws for the transaction of 
any business that may he prohibited by section thirty-one of this 
article, and all such laws shall be uniform in their operation 
throughout the State. 

The legislature has provided general laws for all 
these cases. 



86 CONSTITUTION OF WISCONSIN. [Art. V. 



ARTICLE V. 

THE EXECUTIVE DEPARTMENT. 
Section I. — Executive Power Vested in Governor. 

The Executive power shall be vested in a Governor, who shall hold 
his office for two years; a Lieutenant-Governor shall be elected at 
the same time, and for the same term. 

The executive power is vested in one man rather than 
in a committee or board, because experience has shown 
that one man who has the whole responsibility will be 
more efficient in carrying out the laws than several to- 
gether would be. When laws are to be made, it is better 
to have them considered by a number of persons, so as 
to get the wisdom of all. But where laws are to be en- 
forced, it is better to give all the responsibility to one 
man, so that what is to be done can be done speedily 
and thoroughly. Wisdom is needed in making the laws, 
and that is secured by having a large legislature; but 
energy is needed in carrying out the laws, and that is 
secured by Having a single executive. 

The governor of Wisconsin holds his office for two 
years. He can, however, be re-elected as many times 
as the people choose to make him governor. 

The lieutenant governor is elected for the same term 
as his chief. This is because he may be called on to 
take his place. 



Sec. 3.] ELECTION FOR GOVERNOR. 87 

Section II. — Eligibility. 

No person except a citizen of the United States, and a qualified 
elector of the State, shall be eligible to the office of Governor, or 
Lieutenant-Governor. 

I. Eligibility of the governor. — 

The governor must be a citizen of the United States. 
But a foreigner who has been naturalized is eligible to 
the office of governor or lieutenant governor. Several 
naturalized foreigners have been elected governor or lieu- 
tenant governor of the state. A foreigner can vote, 
after he has been here a year, if he takes out his papers 
declaring his intention to become a citizen of the United 
States, but he cannot be elected governor, lieutenant 
governor, or judge of the circuit or supreme courts, 
until he becomes a citizen. 

II. Eligibility of the lieutenant governor. — 

The lieutenant governor must have the same qualifica- 
tions as the governor, because he is frequently made 
acting governor by reason of the governor's sickness or 
absence from the state ; and he would be made governor 
should the governor die, resign, or be removed upon an 
impeachment. He must have the same qualifications as 
the governor, because he may have to take the governor's 
place. 

Section III. — Election for Governor. 

The Governor and Lieutenant-Governor shall be elected by the 
qualified electors of the State, at the times and places of choosing 
members of the Legislature. The persons respectively having tho 
highest number of votes for Governor and Lieutenant-Governor, 
shall be elected; but in case two or more skaM have an equal and 



88 CONSTITUTION OF WISCONSIN. [Art. V. 

the highest number of votes for Governor or Lieutenant-Governor,, 
the two houses of the Legislature, at its next annual session, 
shall forthwith, by joint ballot, choose one of the persons so hav- 
ing an equal and the highest number of votes, for Governor, or 
Lieutenant-Governor. The returns of election for Governor and. 
Lieutenant-Governor, shall be made in such manner as shall be 
provided by law. 

I. Election by the people. — 

As the governor and lieutenant governor hold office 
for two years, it is only every other year that an election 
for governor and lieutenant governor occurs. This elec- 
tion is in the even years. 

II. Election by the legislature.— The state Constitution 
provides that a plurality shall elect, so that it does not mat- 
ter how many candidates there may be for the office of gov- 
ernor or lieutenant governor; the person who has the highest 
number of votes, although that may not be a majority of all, 
is elected. It is not at all likely, but it is barely possible, that 
there may be a tie vote. In that case, should it ever occur, 
the legislature must decide between the two or more candi- 
dates who received an equal and the highest number of votes. 
This must be done by joint ballot of the two houses of the leg- 
islature. In a joint ballot, both houses sit together as if 
they were one, and each member has one vote. If they do not 
choose the governor or lieutenant governor on the first ballot, 
they must keep on Balloting until they do elect one or the 
other of the candidates. This must be the first business of 
the legislature after organizing. The word "forthwith" in 
this section requires that. 

Section IV. — Powers and Duties of the Governor. 

The Governor shall be Commander-in-chief of the Military and 
Naval forces of the State. He shall have power to convene the 
Legislature on extraordinary occasions, arid in ca'se of invasion, or 
danger from the prevalence of contagious disease at the seat of 
government, he may convene them at any other suitable place 
within the State. He shall communicate to the Legislature, at 



Sec. 4.] POWERS AND DUTIES OF GOVERNOR. 89 

every session, the condition of tlie State; and recommend such mat- 
ters to them for their consideration as he may deem expedient. 
He shall transact all necessary business with the officers of the 
government, civil and military. He shall expedite all such meas- 
ures as may be resolved upon by the Legislature, and shall take 
care that the laws be faithfully executed. 

I. General statement. — 

This section contains a summary of the principal 
powers and duties of the governor except the power of 
pardon and the veto power; for which, see sections 6 
and 10. 

II. Military powers. — 

The governor is commander-in-chief of the military 
and naval forces of the state of Wisconsin. 

The state does not yet have any naval forces, although it is 
possible for it to have ships of war upon Lake Michigan and 
the Mississippi river, if Congress should consent to it. (U. S. 
Const., I, 102.) But the state has no use for a navy, being 
protected against foreign enemies by the whole power of the 
United States. 

The military forces of the state consist, in time of peace, of 
the companies and regiments of the Wisconsin National 
Guard, which are organized under the state military laws. In 
time of war, the state military forces consist, in addition to 
the National Guard, of the volunteer and drafted soldiers who 
are enlisted for that special occasion. These are usually 
sworn into the service of the United States, and are then no 
longer under the authority of the governor, but under that of 
the President. 

III. Convocation of legislature. — 

The governor may call a special session of the legisla- 
ture whenever, for any reason, their action is needed,, 
and cannot be put off until the regular session. 



90 CONSTITUTION OF WISCONSIN. [Art. V. 

In case of invasion, when the enemy's army has taken 
or is likely to take the capital, or when a contagious 
disease makes the capital a dangerous place, he can call 
the legislature, at either their regular session or a special 
one, to meet at such other place in the state as he thinks 
best. 

IV. The governor's message. — 

The governor's message is always sent at the opening 
of the regular session of the legislature. 

The governor gives a brief report of the condition 
of the state, and sends it with the reports of all the 
different state officers and official boards. He gives, 
also, any recommendations that he pleases, which the 
legislature adopts or not, as it chooses. When he calls 
a special session, he must, of course, send a message to 
the legislature to inform them why he called them to- 
gether, and what it is that he wishes to have them act 
upon at that special session. 

V. Transact business of the state. — 

The governor acts as representative of the state, and 
as such must transact all necessary business with the 
officers of the state. He also represents the state in 
all its business with other states, or with the United 
States, except where some other officer is expressly 
named to represent the state for certain purposes. 

VI. Execute the laws. — 

The governor is the executive of the state, and as 
such, he must see that the laws are faithfully executed. 



Sec. 6.] THE PARDONING POWER. 91 

He has no choice in this matter. "Whether he thinks 
that a law is right or wrong, he mnst see that it is ex- 
ecuted. If force is used to prevent the execution of a 
law, he can call on the militia and police forces, and 
if there should be serious resistance to them, he can 
call on the United States army to help him enforce the 
laws. (IT. S. Const., IY, 4.) 

Section V. — Salary of Governor. 

The Governor shall receive during his continuance in office an 
annual compensation of five thousand dollars, which shall be in 
full for all traveling or other expenses incident to his duties. ^ 

[As amended Nov. 2, 1869.] 

The salary of the governor of Wisconsin is five thou- 
sand dollars, which is intended to be enough to enable 
him to live in good style at the capital. 

He also has the use of the Executive Mansion at 
Madison, rent free and furnished. 

Section VI.— The Pardoning Power. 

The Governor shall have power to grant reprieves, commutations 
and pardons after conviction, for aU offenses except treason and 
cases of impeachment, upon such conditions and with such re- 
strictions and limitations as he may think proper, subject to such 
regulations as may be provided by law relative to the manner of 
applying for pardons. Upon conviction for treason, he shall have 
the power to suspend the execution of the sentence, until the 
case shall be reported to the Legislature at its next meeting, 
when the Legislature shall either pardon, or commute the sen- 
tence, direct the execution of a sentence, or grant a further re- 
prieve. He shall annually communicate to the Legislature each 
case of reprieve, commutation or pardon granted, stating the 
name of the convict, the crime of which he was convicted, the 
sentence and its date, and the date of the commutation, pardon 
or reprieve, with his reasons for granting the same. 



92 CONSTITUTION OF WISCONSIN. [Art. V. 

A reprieve is a delay in the execution of a sentence, 
especially a sentence of death. A commutation of a 
sentence is to change it for one less severe. A pardon 
is a reversal of the sentence; a pardon stops all further 
punishment, and restores the criminal to his civil rights. 
(See III, 2.) 

From the nature of the case, the governor must have 
almost unlimited power to pardon; for no laws made 
beforehand can cover all the cases that may deserve 
pardon. Therefore, the governor's power to pardon 
must be discretionary. It is limited, however, in five 
points : 

(1) The legislature prescribes the manner of applying to 
the governor for a pardon. 

(2) In cases of treason the governor cannot pardon abso- 
lutely, but only with the concurrence of the legislature. 

(3) In cases of impeachment he cannot pardon at all. 

(4) And he must report to the legislature all the pardons he 
grants, and his reasons for granting them. 

(5) He cannot pardon before trial and conviction. 

The manner of applying for a pardon is very care- 
fully prescribed by law, so that only those who deserve 
pardons shall get them. 

In cases of treason the governor has no power to 
pardon. He can only suspend the sentence long enough 
for the legislature to act upon it. The governor may 
do this or not, as he chooses. But if he does suspend 
the sentence of a person convicted of treason, the 
legislature must act upon it in some way. 



Sec. 7.] VACANCIES IN OFFICE OF GOVERNOR. 93 

Section VII. — Vacancies in the Office of Governor. 

In case of the impeachment of the Governor, or his removal from 
office, death, inability from mental or physical disease, resignation, 
or absence from the State, the powers and duties of the office shall 
devolve upon the Lieutenant-Governor for the residue of the term, 
or until the Governor, absent or impeached, shall have returned, 
or the disability shall cease. But when the Governor shall, with 
the consent of the Legislature, be out of the State in time of 
war, at the head of the Military force thereof, he shall continue 
Commander-in-chief of the Military force of the State. 

The governor may go out of office, either temporarily 
or permanently. He goes out of office temporarily in 
case he is impeached (VII, 1), and permanently, should 
he, on the impeachment trial, be found guilty and re- 
moved from office by the senate. He goes out of office 
temporarily when he is so sick or so out of his right 
mind that he cannot discharge the duties of his office; 
and permanently in case of his death. He goes out of 
office temporarily whenever he goes out of the state; 
and permanently should he ever resign. When he goes 
out of office temporarily, the lieutenant governor acts 
as governor as long as he stays out of office; but when 
he goes out of office permanently, the lieutenant gov- 
ernor becomes governor for the rest of the two years 
for which they were both elected. 

The exception is made, that whenever in time of war 
the governor goes out of the state to command the state 
troops, he shall still be governor, so far as being com- 
mander-in-chief is concerned. But he can only do this 
with the consent of the legislature; and the lieutenant 
governor will act as governor in every other respect. 



94 CONSTITUTION OF WISCONSIN. [Art. V. 

Section VIII. — Powers or the Lieutenant-Governor. 

The Lieutentant-Governor shall be President of the Senate, but shall 
have only a casting vote therein. If, during a vacancy in the 
office of Governor, the Lieutenant-Governor shall be impeached, 
displaced, resign, die, or from mental, or physical disease become 
incapable of performing the duties of his office, or be absent from 
the State, the Secretary of State shall act as Governor, until the 
vacancy shall be filled, or the disability shall cease. 

I. President of the senate.— 

The lieutenant governor is president of the state 
senate. He has no vote on ordinary occasions, because 
he is not a member of the senate; but when there is 
a tie vote on any question, he has then a casting vote 
(or deciding vote); not as a member, but as the pre- 
siding officer of the senate. In this he differs from the 
speaker of the assembly, who has a vote on all ques- 
tions, but no additional casting vote. In the assembly,. 
as in the senate when presided over by a senator, if 
there is a tie vote the matter is lost, because it requires 
a majority to carry a question. 

II. Acting governor. — 

When the lieutenant governor is acting as governor,, 
or if he is sick or absent, or if he should be impeached,, 
or resign, or die, he cannot, of course, preside in the 
senate. The senate in that case elect one of their 
own number president pro tempore (for the time). The 
president pro tempore has a vote on all questions as a 
member of the senate, but has no casting vote. 

"When the governor and lieutenant governor are both 
incapacitated, the secretary of state, who is the next 



Sec. 10.] HOW BILLS BECOME LAWS. 95 

highest elective officer of the state, acts as governor 
temporarily. 

Section IX. 

The Lieutenant-Governor shall receive during his continuance in 
office, an annual compensation of one thousand dollars. 

[As amended Nov. 2, 1869.] 

The intention of this section is to give the lieutenant 
governor a compensation for the time he actually 
spends. When he acts as governor he draws the salary 
of governor. 

Section X. — How Bills Become Laws. 

Every bill which shall have passed the Legislature shall, before it 
becomes a law, be presented to the Governor; if he approve, he 
shall sign it, but if not, he shall return it, with his objections, to 
that house in which it shall have originated, who shall enter the 
objections at large upon the journal, and proceed to reconsider 
it. If, after such reconsideration two-thirds of the members pres- 
ent shall agree to pass the bill, it shall be sent, together with 
the objections, to the other house, by which it shall likewise be 
reconsidered, and if approved by two-thirds of the members pres- 
ent, it shall become a law. But in aU such cases the votes of both 
houses shall be determined by yeas and nays, and the names of 
the members voting for or against the bill, shall be entered on 
the journal of each house respectively. If any bUl shall not be 
returned by the Governor within three days (Sundays excepted) 
after it shall have been presented to him, the same shall be a 
law, unless the Legislature shall, by their adjournment, prevent 
its return, in which case it shall not be a law. 

A bill becomes a law as soon as it is signed by the 
governor, or if he refuses to sign it, as soon as it is 
passed over his veto, and is deposited with the secre- 
tary of state with the signatures of the officers of the 
two houses. 



$6 CONSTITUTION OF WISCONSIN. [Art. V. 

When the governor vetoes a bill, bis reasons for veto- 
ing the bill mnst be given in writing, so that they 
can be copied upon the journal of the house that origi- 
nated the bill. They mast then vote upon it, and they 
must vote by ayes and noes, so that the vote of every 
member can be recorded. If two-thirds of the mem- 
bers present do not agree to pass it, that is the end of 
the bill. If two-thirds of the members present do 
vote for it, it goes to the other house, where the gover- 
nor's objections are entered upon the journal as before, 
and a vote taken by ayes and noes, and recorded as 
before. If two-thirds of the members present do not 
vote for the bill, the bill is lost. If two-thirds of 
them do vote for it, it becomes a law. 

The governor has only three days in which to con- 
sider a bill which has been passed by the legislature. 
In these three days Sundays are not counted, because 
.no official business can be done on Sunday. 

During the last three days of the session of the legis- 
lature the governor need not veto a bill that he does 
mot wish to become a law. All he needs to do is not 
-to sign it, and then it cannot become a law, even if 
-two-thirds of each house are ready to vote for it. 

There are four ways in which a bill may be lost: 

1. It may not get a majority in the assembly. 

2. It may not get a majority in the senate. 

3. It may be vetoed by the governor, and not passed 
-over his veto by the legislature. 



ADMINISTRATIVE. 97 

4. It may be "pocketed" by the governor during the 
last three days of the session. 

And there are three ways in which a bill may be- 
come a law: 

1. It may pass both houses and be signed by the 
governor. 

2. It may pass both houses, be vetoed by the gover- 
nor, and be passed over his veto by a two-thirds ma- 
jority of each house. 

3. It may pass both houses, and the governor may 
fail to sign it within three days (when these are not at 
the close of the session). 



ARTICLE VI. 

ADMINISTRATIVE. 

I. Administrative officers not a part of the 

executive. — 

In the state government the administrative officers 
are not a part of the executive as in the United States 
government. They are either elected directly by the 
people or are appointed by the governor, but cannot 
be removed except for cause. The governor has no 
cabinet such as the President has. 

II. Elected officers. — 

The state administration now consists of the follow- 
ing elected officers:' 

Wis. Con.— 7. 



98 CONSTITUTION OF WISCONSIN. [Art. VI. 

1. The Secretary of State. 

2. The Treasurer. 

3. The Attorney General. 

4. The State Superintendent 

5. The Railroad Commissioner. 

6. The Insurance Commissioner. 

These officers are elected every two years hy the voters 
of the state on the same ticket with the governor and 
the lieutenant governor. 

III. Appointed officers and boards. — 

In addition to these there are several appointed of- 
ficers and boards, who form a part of the state adminis- 
tration. A complete list of these together with the 
names of all clerks and employes in the state capitol, is 
given every two years in the Blue Book, a copy of 
which is furnished by the state to every school. As 
changes are made frequently by creating new offices or 
abolishing old ones, no attempt is made to give a list in 
this place, but the student is referred to the Blue Book. 

Section I.— State Officers. 

There shall be chosen by the qualified electors of the State, at the 
times and places of choosing the members of the Legislature, a 
Secretary of State, Treasurer and Attorney General, who shall 
severally hold their offices for the term of two years. 

All the state officers, including the governor and 
lieutenant governor, are elected for two years, and the 
election comes in the even years, together with the elec- 
tion for members of Congress, and with the election 



SeC. 3.] TREASURER AND ATTORNEY GENERAL. 99 

for President in the leap years. "No qualifications are 
required by this section for the administrative officers. 
But by a decision of the supreme court in the case of 
a sheriff, the principle of which would apply also to 
state officers, state and county officers must be voters, 
unless it is otherwise provided by law. County super- 
intendents of schools may be women. 

Section II. — The Secretary of State. 

The Secretary of State shall keep a fair record of the official acts 
of the legislature and Executive department of the State, and 
shall, when required, lay the same and all matters relative thereto, 
before either branch of the Legislature. He shall be ex-officio 
Auditor, and shall perform such other duties as shall be assigned 
him by law. He shall receive as a compensation for his services 
yearly, such sum as shall be provided by law, and shall keep his 
office at the seat of government. 

The secretary of state is not required to keep a 
record of the judicial department, because such a rec- 
ord is kept by the clerk of each of the courts. 

As auditor he must examine the accounts of the 
treasurer and also examine the claims against the 
state. No bills against the state are paid except as he 
approves them. 

Section III.— The Treasurer and Attorney General. 

The powers, duties and compensation of the Treasurer and Attor- 
ney General shall be prescribed by law. 

The state treasurer keeps the money and accounts of 
the state; and the attorney general is the lawyer for 
the state. They each have an office in the capitol at 

Madison. 



100 CONSTITUTION OF WISCONSIN. [Art. VI. 

Section IV. — County Officers. 

Sheriffs, coroners, registers of deeds, district attorneys, and all other 
county officers, except judicial officers, shall be chosen by the 
electors of the respective counties, once in every two years. Sher- 
iffs shall hold no other office, and be ineligible for two years next 
succeeding the termination of their offices. They may be required 
by law to renew their security from time to time; and in default 
of giving such new security, their offices shall be deemed vacant, 
but the county shall never be made responsible for the acts of 
the sheriff. The Governor may remove any officer in this section 
mentioned, giving to such a copy of the charges against him, and 
an opportunity of being heard in his defense. All vacancies shall 
be filled by appointment, and the person appointed to fill a va- 
cancy shall hold only for the unexpired portion of the term to 
which he shall be appointed, and until his successor shall be 
elected and qualified. 

[As amended Nov. -7, 1882.] 

I. Terms of office. — 

All county officers, except county judges, are elect- 
ed for two years in the even numbered years, when 
Congressmen and state officers are elected; and their 
term of office begins with the first Monday of January 
in the odd years. 

II. Vacancies. — 

All vacancies in county offices are filled for the unex- 
pired term. Vacancies in the office of county sup3rin- 
tendent are filled by appointment by the state superin- 
tendent; vacancies in the office of clerk of the court by 
appointment by the circuit judge; and all other vacan- 
cies by appointment by the governor. 

III. Sheriffs.— 

The office of sheriff is one of great responsibility, and 
the Constitution provides very carefully against its 
abuse. 



Sec. 4.] COUNTY OFFICERS. 101 

1st. Sheriffs can hold no other office. 

2d. They are ineligible to the office of sheriff for the 
next two years, and, therefore, cannot use their office to 
electioneer for re-election. 

3d. They may be required to renew their security 
from time to time. 

4th. The county cannot be made responsible for 
their acts. 

5th. The governor may remove them at any time for 
cause. 

The supreme court has decided that this section not 
only provides for the election of sheriffs, but determines 
that their powers and duties shall not be transferred to 
other officers. 

IV. Other county officers. — 

In addition to the county officers named in this sec- 
tion, the following are otherwise provided for: 
Clerk of the circuit court (VII, 12). 
County judge (VII, 14). 
County clerk (by statute). 
County treasurer (by statute). 
County surveyor (by statute). 
Superintendent of schools (by statute, under X, 1). 



102 CONSTITUTION OF WISCONSIN. [Art. VII. 

ARTICLE VII. 

JUDICIARY. 
Section I.— Impeachments. 

The court for the trial of impeachments shall be composed of the 
Senate. The House of Representatives shall have the power of 
impeaching all civil officers of this State, for corrupt conduct in 
office, or for crimes and misdemeanors; but a majority of all the 
members elected shall concur in an impeachment. On the trial 
of an impeachment against the Governor, the Lieutenant-Gov- 
ernor shall not act as a member of the court. No judicial officer 
shall exercise his office, after he shall have been impeached, until 
his acquittal. Before the trial of an impeachment, the members 
of the court shall take an oath or affirmation, truly and imparti- 
ally to try the impeachment according to evidence; and no person 
shall be convicted without the concurrence of two-thirds of the 
members present. Judgment in cases of impeachment shall not 
extend further than to removal from office, or removal from office 
and disqualification to hold any office of honor, profit or trust 
under the State; but the party impeached shall be liable to in- 
dictment, trial and punishment according to law. 

I. An impeachment trial. — 

An impeachment trial is not a common criminal trial; 
it is a political trial. The offenses which can be tried 
are political offenses; the persons who can be tried are 
political officers, and the only punishments which can 
be imposed are political punishments. And, therefore, 
the court which tries them is the highest political body- 
in the state. But the trial is carried on according to 
the usual forms and methods of higher courts of law, 
for the senate is then sitting as a court and not as a 
legislative body. 



Sec. 1.] IMPEACHMENTS. 103 

II. The power to impeach. — 

The name, House of Representatives, evidently stands 
for the assembly, by an unnsnal piece of carelessness in 
the framers of the Constitution. The lower house of 
the legislature has the power of impeachment, because 
it represents the people more directly than any other 
part of the state government, being elected every year. 
An impeachment by the assembly answers to a present- 
ment by a grand jury in criminal cases. It puts the 
person impeached upon his trial; but it does not neces- 
sarily follow because an officer is impeached that he is 
therefore convicted. 

It is a common mistake to talk of the impeachment of 
an officer as if that were the same as conviction. 

III. Who can be impeached. — 

The persons who can be impeached are the civil of- 
ficers of the state. Military officers cannot be im- 
peached; but they can be tried by court martial and 
cashiered for corrupt conduct in office. JSTor can mem- 
bers of the legislature be impeached. They are not of- 
ficers of the state, but representatives of the people. 

Senators and assemblymen can be expelled for the 
same offenses for which civil officers can be impeached. 

Judges may be impeached, but they may also be re- 
moved by address. (VII, 13.) 

IV. For what offenses. — 

An officer may be impeached for corrupt conduct in 
office, or for crimes and misdemeanors which show that 



104 CONSTITUTION OF WISCONSIN. [Art. VII. 

he is not a fit person to be entrusted with office. Trea- 
son, bribery, gross neglect of duty, direct disobedience 
of the laws, and the like, would be considered corrupt 
conduct in office. 

The crimes and misdemeanors for which an officer 
may be impeached are not exactly defined by the Con- 
stitution, and it was not intended they should be. The 
assembly must decide upon each case that comes up, 
whether it is worthy of impeachment or not; and the 
senate, whether the person impeached deserves to be 
removed from office or not. 

V. The lieutenant governor does not preside. — 

The lieutenant governor presides over the senate at. 
all impeachment trials, except when the governor is im- 
peached. In that case, he has a direct interest in the 
result of the trial, for he would become governor if the 
governor should be removed; and, moreover, he is then 
acting governor, and cannot perform both functions at 
once. (V, 7.) When the governor is impeached, or if 
for any other cause the lieutenant governor does not 
preside, the senate elects a president from its own 
members. 

VI. Impeachment suspends the governor and 

judges.— 

Under the United States Constitution impeached of- 
ficers still continue to act in their offices until removed by 
the sentence of the senate, and the same rule holds in? 
Wisconsin. An exception, however, is made with re- 



Sec. 1.] IMPEACHMENTS. 105 

gard to judicial officers, and also with regard to the gov- 
ernor. (V, 7.) 

VII. Two-thirds required to convict. — 

The state Constitution follows the United States Con- 
stitution in requiring a two-thirds majority to convict. 
Otherwise a partisan majority might impeach and re- 
move a governor or other officer for party purposes. 

VIII. What punishment can be inflicted.— 

The persons who can be tried are officers of the state. 
They can be tried only for political offenses, and their 
punishment is political. It may only be removal from 
office, and it may also be disqualification for office ever 
after. This disqualification can be removed at any time 
by act of the legislature. If the offense is also a crim- 
inal offense as well as a political offense, the officer may 
be tried by the ordinary courts and punished at any 
time. 

The state has, therefore, three methods of procedure 
against an unworthy officer: 

1st. He can be impeached and removed from office, 
and also disqualified from holding any office under the 
state. 

2d. If guilty of a criminal offense, he can be indicted, 
tried and punished like any other criminal. 

3d. If he has wrongfully taken money or property 
from the state, it can be recovered by a civil process. 

There has been but one impeachment trial in this 
state, that of a judge, and he was not convicted. 



106 CONSTITUTION OF WISCONSIN. [Art. VII. 

Section II. — Courts of the State. 

'The judicial power of this State, both as to matters of law and 
equity, shall be vested in a Supreme court, Circuit courts, Courts 
of Probate, and in Justices of the Peace. The Legislature may 
also vest such jurisdiction as shall be deemed necessary in munici- 
pal courts, and shall have power to establish inferior courts in 
the several counties, with limited civil and criminal jurisdiction. 
Provided, that the jurisdiction which may be vested in municipal 
courts shall not exceed, in their respective municipalities, that of 
circuit courts, in their respective circuits, as prescribed in this 
•Constitution: And that the Legislature shall provide as well for 
the election of Judges of the Municipal courts, as of the Judges 
of inferior courts, by the qualified electors of the respective juris- 
dictions. The term of office of the judges of the said Municipal 
and inferior courts shall not be longer than that of the Judges of 
the circuit court. 

The courts of the state. — 

There is only one set of courts in this state for both 
law and equity, not two sets of courts, as in England and 
in some of the older states. The courts of this state are 
«as follows: 

1. The supreme court, consisting of five justices 
elected for ten years each. 

2. The circuit courts, consisting of one judge in 
-each circuit, except in Milwaukee county where there are 
to be two circuit judges, each holdings separate court. 
All circuit judges are elected for six years, but not all at 
the same time. 

3. The inferior courts, with judges elected in most 
<?ases for four years each, consisting of — 

a. A county court in each county, generally with 
-probate jurisdiction and very little more, but in some 
counties with almost as much jurisdiction in civil cases 
as the circuit court, in addition to probate powers. 



Sec. 3.] POWERS OF THE SUPREME COURT. 107 

b. A municipal court in several counties, with almost 
the jurisdiction of the circuit court, especially in criminal 
cases. One county has two municipal courts for two 
parts of the county. 

c. A superior court in Milwaukee county, with two 
judges elected for six years each, sitting separately, and 
with substantially the same jurisdiction in civil cases as 
the circuit court. Owing to its size and the large 
amount of legal business, Milwaukee county thus has six 
judges of courts of record — two circuit judges, two su- 
perior judges, one municipal judge and one county 
judge (with probate powers only). Douglas county also 
has a superior court. 

4. Justice courts and police courts, the former in 
every town, village and ward of a city, and the latter 
in some cities and villages. The term of office of jus- 
tices of the peace and police justices is two years. 

Section III. — Powers of the Supreme Court. 

The Supreme court, except in cases otherwise provided in this Con- 
stitution, shall have appeUate jurisdiction only, which shall be 
co-extensive with the State; but in no case removed to the Su- 
preme Court, shall a trial by jury be allowed. The Supreme Court 
shall have a general superintending control over aU inferior courts; 
it shall have power to issue writs of habeas-corpus, mandamus, 
injunction, quo ■warranto, certiorari; and other original and 
remedial writs, and to hear and determine the same. 

I. Original and appellate jurisdiction. — 

The only cases in which the supreme court has origi- 
nal jurisdiction are those of suits against the state, and 
:in issuing the original writs named below. 



108 CONSTITUTION OF WISCONSIN. [Art. VII. 

In all other cases suits must first be brought before some 
inferior court; and an appeal may be taken from its decision 
to the next higher court, and so on until it reaches the su- 
preme court, where a decision is final. 

The decisions of the supreme court in regard to the law of 
any case are always followed by all lower courts in all like 
cases, and are usually followed afterward by the supreme 
court, though not always. The decisions of the supreme court 
interpret the law, and, therefore, in a certain sense, the su- 
preme court may be said to sometimes make laws. Where a 
law may be understood to mean several different things, every 
court must decide for itself what it really does mean; and as 
the supreme court is the final and highest authority, its decis- 
ion decides finally the meaning of the law in dispute, unless 
that decision is afterward reversed by the supreme court 
itself. 

A similar power is that of deciding laws to be unconstitu- 
tional. All the statute laws of the state are, of course, sub- 
ject to the Constitution of the state, and to the Constitution 
and statutes and treaties of the United States. Upon any case 
coming before any court in the state, the plea may be made 
by the lawyers on either side, that a certain law or part of a 
law bearing on that case is unconstitutional, or that it is an 
encroachment on the supreme authority of the United States 
as expressed in its Constitution, statutes or treaties with for- 
eign powers. If the plea is sustained by the court, and the 
decision is not reversed by a higher court, that law or part of 
law is ever after regarded in all courts as void and good for 
nothing. A decision in the supreme court is the highest au- 
thority upon the constitutionality of a state law. 

II. The power to issue writs. — 

The supreme court exercises this general control 
over all courts inferior to itself, by reason of the right 
of appeal and of writs of error (I, 21), and by reason of 
the writs named in this section. 



Sec. 3.] powers or the supreme court. 109 

In ordinary cases, however, the supreme court refuses 
to grant these writs, and refers the petitioners to the 
circuit court It is only in exceptional cases that the 
supreme court will grant the w r rits named above. 

These writs are all named from the Latin words with which 
they begin, for these writs were formerly in England issued 
in Latin. Those mentioned here are the most important 
writs used by the courts to secure justice, and are used as 
follows : 

The writ of habeas corpus (you may have the body) com- 
mands the person to whom it is issued to produce the body of r 
some person whom it is charged he holds in unjust confine- 
ment, before the court, and show cause why he should not be 
liberated. 

The writ of mandamus (we command) commands officers 
and others to do certain things which it is their duty to do. 
For instance, if the secretary of state should refuse to give a 
certificate of election to a member of the legislature duly 
elected, and he could not take his seat because of it, the cir- 
cuit or supreme court would issue a writ of mandamus and 
compel the certificate to be given. 

. A writ of injunction forbids certain things to be done, which 
if done, would cause injury which could not be remedied by 
the law, or commands certain things to be done, the neglect 
of which would cause an injury which could not be remedied. 

A writ of quo warranto (by what warrant) is one which 
calls upon a person or corporation to show by what authority 
he or it exercises certain powers. For instance, on the first 
of January, 1856, the governor elect sued out a writ of quo 
warranto in the supreme court, against his predecessor, who 
refused to give up the office, and was put into the office by the 
power of the supreme court. 

The question which of two contestants is entitled to hold a 
certain office has been several times tried before the supreme 
court by the use of this writ. 



110 CONSTITUTION OF WISCONSIN. [Art. VII~ 

A writ of certiorari (to be certified of) is very much the same 
thing as a writ of error. When a higher court is certified or 
assured that justice is not being done in some case in a lower 
court, such a writ will be issued, and the case removed to the 
higher court. This writ compels the lower court to send up 
the record of a case that has been tried or is being tried in the 
lower court; and then the higher court tries the case upon the 
facts shown in the record. 

Section IV. — Organization op the Supreme Court. 

The chief justice and associate justices of the supreme court shall 
be severally known as justices of said court with the same terms 
of office, respectively, as now provided. The supreme court shall: 
consist of five justices (any three of whom shall be a quorum), to 
be elected as now provided. The justice having been longest a 
continuous member of the court (or in case of two or more of 
such senior justices having served for the same length of time,, 
then the one whose commission first expires), shall be ex-officio- 

- the chief justice. 

[As amended April 2, 1892.] 

There have been four different organizations of the 
supreme court of this state: 

1. From 1848 to 1853, the supreme court consisted 
of all the judges of the circuit courts meeting as one 
body, four being necessary to a quorum. 

2. From 1853 to 1878, it consisted of a chief justice 
and two associate justices, elected for six years each, so- 
that one of them was elected every two years. 

3. From 1878 to 1889, it consisted of one chief jus- 
tice and four associate justices, elected for ten years 
each, so that one of them was elected every two years. 

4. Since 1889 it has consisted of five justices, elected 
as before, but the senior justice in time of service is 
chief justice. 



Sec. 7.] CIRCUIT JUDGES. Ill 

The term of office of a justice of the supreme court 
begins on the first Monday in January, except when 
elected or appointed to fill a vacancy. 

Section V* and VI. — Judicial Circuits. 

The Legislature may alter the limits, or increase the number or 
circuits, making them as compact and convenient as practicable, 
and bounding them by county lines; but no sueh alteration or in- 
crease shall have the effect to remove a judge from office. In 
case of an increase of circuits, the judge or judges shall be elected 
as provided in this Constitution and receive a salary not less than 
that herein provided for judges of the circuit court. 

The legislature has frequently altered and increased 
the circuits. The counties composing the circuits and 
the judges of each and the times of holding court in each 
county can be learned from the Blue Book. 

Section VII.— Circuit Judges. 

For each circuit there shaU be chosen by the qualified electors 
thereof one circuit judge, except that in any circuit composed of 
one county only, which county shall contain a population accord- 
ing to the last state or United States census of 100,000 inhabi- 
tants or over, the Legislature may, from time to time, authorize 
additional circuit judges to be chosen. Every circuit judge shaU. 
reside in the circuit from which he is elected, and shall hold his 
office for such term, and receive such compensation as the Legis- 
lature shall prescribe. 

[As amended April 6, 1897.] 

Every circuit judge must live in his own circuit, be- 
cause there are a great many writs and processes that 
he may have to issue when he is not holding court, and 
it would be very inconvenient to go out of the circuit 
after him, to have a writ issued. 



* Section 5 arranged what should be the five judicial circuits, until the leg- 
islature should change them. It is no longer in force and is omitted. 



112 CONSTITUTION OP WISCONSIN. [Art. VII. 

Milwaukee county on account of its size has a special 
provision made for it, by which additional circuit judges 
may be elected in that county. 

Circuit judges are elected for six years. Their term 
of office begins on the first Monday in January, except 
when elected or appointed to fill a vacancy. 

Section VIII.— Powers oe Circuit Courts. 

The circuit courts shall have original jurisdiction in all matters 
civil and criminal within this State, uot excepted in this Constitu- 
tion, and not hereafter prohibited by law; and appeUate jurisdic- 
tion from all inferior courts and tribunals, and a supervisory con- 
trol over the same. They shall also have the power to issue writs 
of habeas corpus, mandamus, injunction, quo warranto, certiorari, 
and all other writs necessary to carry into effect their orders, 
judgments and decrees, and give them a general control over in- 
ferior courts and jurisdictions. 

All important cases begin in some circuit court; small 
cases begin before a justice of the peace, or a police 
magistrate, or a county judge, and may be appealed to 
the circuit court, or carried up on a writ of error or of 
certiorari, if either party is aggrieved at a decision 
made in the lower court. 

Each circuit court has jurisdiction in its own district, and 
in that only, except in two cases : 

1st. Crimes and misdemeanors committed on Lake ■ Mich- 
igan, Lake Superior, Lake Winnebago, and the Mississippi 
and St. Croix rivers, may be tried in the courts of any county 
that borders on them. (See comments on IX, 1.) 

2d. Cases may be changed from one county to another, or 
one circuit to another, when it is likely that the trial would 
not be fair in the county or circuit where they were begun. 
This is called a change of venue. (See I, 7.) 



Sec. 9.] VACANCIES AND ELECTIONS. 113 

Section IX. — Vacancies and Elections. 

When a vacancy shall happen in the office of judge of the Supreme 
or circuit courts, such vacancy shall be filled by an appointment 
of the Governor, wbich shall continue until a successor is elected 
and qualified; and when elected such successor shall hold his 
office the residue of the unexpired term. There shall be no elec- 
tion for a judge or judges at any general election for State or 
county officers, nor within thirty days either before, or after such 
election. 

I. Vacancies. — 

A vacancy may occur in a judgeship by the death or 
resignation of the judge, by his accepting any other of- 
fice whatever, by his removing his residence, if a circuit 
judge, outside his circuit; and if a supreme judge, out- 
side the state; or, by his removal from office by im- 
peachment or address. If a judge is impeached by the 
assembly, he is suspended from his office until his trial 
is through. If not convicted, he resumes his office. In 
case of a vacancy, the governor appoints temporarily. 
At the next spring election a judge is elected for the 
unexpired balance of the term. 

II. Elections. — 

The state and county elections are held in the fall. 
The election of judges of the supreme court and circuit 
court are held in the spring at the town elections. The 
reason of this is, so that the political and party feeling 
which is rife 'at the state and county elections, should 
not influence the nomination or election of the judges. 
They ought to be elected for their fitness for the place, 
and not for their party services. 

This has generally been the case and this state has had 

Wis. Con.-8. 



114 CONSTITUTION OP WISCONSIN. [Art. VII. 

a very able and impartial supreme court, and excellent 
circuit courts. 

Section X. — Salaries and Qualifications. 

Each of the judges of the Supreme and circuit courts shaU receive 
a salary, payable quarterly, of not less than one thousand five 
hundred dollars annually; they shall receive no fees of office, or 
other compensation than their salaries; they shall hold no office 
of public trust, except a judicial office, during the term for which 
they are respectively elected, and all votes for either of them for 
any office, except a judicial office, given by the Legislature or the 
people, shall be void. No person shall be eligible to the office of 
judge, who shall not, at the time of his election, be a citizen of 
the United States, and have attained the age of twenty five years,, 
and be a qualified elector within the jurisdiction for which he 
may be chosen. 

I. Salaries. — 

The salary of judges of the supreme court is now 
$5,000; that of judges of the circuit courts is $3,000, 
except in Milwaukee county, where it is $5,000, the 
county paying the extra $2,000. The salaries of these 
judges are paid from the state treasury with that excep- 
tion. 

Judges are forbidden to receive fees, because it might 
often influence their decisions upon cases before them, 
or at least give rise to the suspicion that the decisions 
were so influenced. 

II. Candidacy for office.— 

A judge should have no interests of any sort except 
to render strict and impartial justice; his whole time 
must be given to this. Therefore, he is not allowed to 
hold any other office, or even to receive votes for another, 
other than that of judge while he is judge. 



Sec. 11.] TERM OF COURT. 115 

This last provision is meant to apply to United States as 
well as to state officers; but it is void so far as it forbids a 
judge to be a candidate for President, Vice-President, Senator 
or Representative. The United States Constitution has pre- 
scribed the qualifications for these positions, and no state 
constitution can add to or take from them. It has been re- 
peatedly settled by both houses of Congress, that the Consti- 
tution of the United States having fixed the qualifications of 
members, no additional qualification can rightfully be re- 
quired by the states. 

III. Qualifications. — 

IsTo other state officer need be more than twenty-one 
years old, but a judge must be twenty-five years old. He 
must have lived at least one year in the state to be a 
qualified elector. He must live in the state if a judge 
of the supreme court, and in his circuit if a circuit judge, 
to be a qualified elector in the jurisdiction for which he 
is chosen. If of foreign birth, he must have lived in 
the United States at least five years to be a citizen of the 
United States. 

Section XI.— Term oe Court. 

The Supreme court shall hold at least one term, annually, at the 
seat of government of the State, at such time as shall he pro- 
vided by law. And the Legislature may provide for holding other 
terms, and at other places when they may deem it necessary. A 
Circuit Court shall be held, at least twice in each year, in each 
county of this State organized for judicial purposes. The judges 
of the circuit court may hold courts for each other, and shall do 
so when required by law. 

I. Terms of court. — 

The terms of the supreme court are held twice a year 
at Madison in the capitol. 



116 CONSTITUTION OF WISCONSIN. [Art. VII. 

The terms of the circuit court are always held at the 
county seat of each county. Tour terms are held in 
Milwaukee county and three in several other counties. 
Two terms are held in all the others. 

Every county is now "organized for judicial purposes." 

II. Judges hold court for each other. — 

If for any reason a judge cannot hold court at a certain 
time and place, he may get some other judge to hold 
court for him at that time and place. This is occasionally 
necessary from the sickness of the judge or other cause. 

Section XII. — Clerk oe the Circuit Court. 

There shan be a clerk of the circuit court chosen in each county 
organized for judicial purposes, by the qualified electors thereof, 
who shall hold his office for two years, subject to removal, as 
shall be provided by law. In case of a vacancy, the judge of the 
circuit court shall have the power to appoint a clerk, until the 
vacancy shall be filled by an election. The clerk thus elected or 
appointed shall give such security as the Legislature may require. 
The supreme court shall appoint its own clerk, and the clerk of 
the circuit court may be appointed clerk of the supreme court. 
[As amended Nov. 7, 1882.] 

The clerk of the circuit court in each county is elected 
for two years, with the other county officers, at the gen- 
eral election. 

Where a county was not organized for judicial purposes, it 
was attached to some neighboring- county for judicial pur- 
poses, and the clerk of the court in that county was clerk of 
the court for both, but there are now no such courts in this 
state. 

The clerk of the court may be removed by the cir- 
cuit judge at any time; but he must have a copy of the 



Sec. 13.] REMOVAL Br ADDRESS. 117 

charges against him, and an opportunity to be heard in 
his own defense. 

The clerk of the supreme court is appointed by the 
court itself. 



Section XIII. — Removal by Address. 

Any judge of the Supreme or circuit court may be removed from 
office, by address of both houses of the [Legislature, if two-thirds 
of all the members elected to each house concur therein, but no 
removal shall be made by virtue of this section, unless the judge 
complained of shall have been served with a copy of the charges 
against him, as the ground of address, and shall have had an op- 
portunity of being heard in his defense. On the question of re- 
moval, the ayes and noes shall be entered on the journals. 

This is a shorter method of removing a bad judge 
than by impeachment; but it requires a larger majority 
of the legislature to do it. A removal by impeachment 
requires a majority of all the members elected to the 
assembly, and two-thirds of all present in the senate. 
While a removal by address requires two-thirds of all 
the members elected to each house. But in case of a 
flagrant offense, this saves the long formalities of a 
trial. Substantial justice is provided for, in giving the 
accused judge a copy of the charges against him, and 
allowing him to be heard in his defense, and in requir- 
ing the members to vote by ayes and noes. The address 
is made to the governor, who thereupon removes the 
judge and appoints some one to fill the vacancy thus 
made. No judge has ever been thus removed. 



118 CONSTITUTION OF WISCONSIN. [Art. VII. 

Section XIV. — Probate Judge. 

There shall be chosen in each eounty, by the qualified electors 
thereof, a Judge of Probate, who shall hold his office for two 
years, and until his successor shall be elected and qualified, and 
whose jurisdiction, powers and duties shall be prescribed by law. 
Provided, however, that the Legislature shall bave power to 
abolish the office of Judge of Probate in any county, and to con- 
fer probate powers upon such inferior courts as may be estab- 
lished in said county. 

The jurisdiction of probate judges extended to all 
cases of wills and inheritance of property, and guard- 
ianship of moneys, and administration of the estates of 
deceased persons. But all probate powers are now con- 
ferred upon the county judges, under Section 2. 

Section XV. — Justices oe the Peace. 

The electors of the several towns, at their annual town meeting, 
and the electors of cities and villages, at their charter elections, 
shall, in such manner as the Legislature may direct, elect justices 
ot the peace, whose term of office shall be for two years, and un- 
til their successors in office shall be elected and qualified. In case 
of an election to fill a vacancy, occurring before the expiration of 
a fuU term, the justice elected shall hold for the residue of the 
unexpired term. Their number and classification shall be regulated 
by law. And the tenure of two years shall in no wise interfere 
with the classification in the first instance. The justices, thus 
elected, shall have such civil and criminal jurisdiction as shaU be 
prescribed by law. 

I. Election. — 

There are four justices of the peace elected in every 
town, two each year, at the spring election. If there 
is a vacancy for any cause, it is filled at the next spring 
election. In villages and cities their number differs, 
but they are all elected for two years and at the spring 
election. 



Sec. 17.] form or writs and processes. 119 

II. Jurisdiction. — 

Justices have jurisdiction anywhere in their county 
in civil suits in all cases where the value in controversy 
is small, and in criminal cases in minor offenses. The 
sentence of a justice of the peace can be appealed from 
to the next higher court in all cases. 

Section XVI.— Tribunals of Conciliation. 

The Legislature shall pass laws for the regulation of tribunals of 
conciliation, defining their powers and duties. Such tribunals may- 
be established in and for any township, and shall have power to 
render judgment, to be obligatory on the parties, when they shall 
voluntarily submit their matter in difference to arbitration, and 
agree to abide the judgment, or assent thereto in writing.- 

The legislature has established no regular tribunals 
of conciliation. But the law allows parties to a civil 
suit, who choose to do so, to submit their difference to 
arbitrators, chosen by both of them. These arbitrators 
are for that particular case a "tribunal of conciliation." 

This section of the Constitution evidently means 
more than this, and the legislature has neglected its 
duty in not establishing these "tribunals of concilia- 
tion" in every township. If such tribunals were es- 
tablished, half the law-suits, with the expenses and 
hatred involved in them, would be saved. 

Section XVII.— The Form oe Writs and Processes. 

The style of all writs and process shall be, "The State of Wisconsin"; 
All criminal prosecutions shall be carried on in the name and by 
the authority of the same; and all indictments shall conclude 
against the peace and dignity of the State. 



120 CONSTITUTION OF WISCONSIN. [Art. VIL 

Thus, every constable and justice of the peace rep- 
resents the state of Wisconsin within his own jurisdic- 
tion. And the sovereign authority of the state is 
extended to every official action of the officers of the 
law throughout the state. 

Every writ and process must begin with the words 
"The state of Wisconsin/' and every indictment, after 
stating the offense with which the accused is charged, 
must conclude with the words "against the peace and 
dignity of the state of Wisconsin." 

Section XVIII. — Tax on Suits. 

The Legislature shall impose a tax on all civil suits commenced, 
or prosecuted in the municipal, inferior, or circuit courts, which 
shall constitute a fund to be applied toward the payment of the 
salary of judges. 

A nominal tax of $1.00 is levied on every civil suit 
in these courts to conform to this section, but this tax 
does not go far toward paying the salaries of the judges. 

Section XIX. — Law and Equity. 

The testimony in causes in equity shall he taken in like manner as 
in cases at law, and the office of master in chancery is hereby 
prohibited. 

The distinction between common law and equity is in 
form abolished by the code of the state, but still there 
are differences in substance well understood by lawyers, 
but too many and too intricate to admit of a definition 
or description in the limits of this work. The office of 
master in chancery in those states in which there are 
separate courts of equity, answers to the office of court 



Sec. 21.] PUBLICATION OF THE LAWS. 121 

commissioner in courts of law. Under the Constitution, 
the court commissioners perform most of the duties of 
masters in chancery. The practice of law is greatly 
simplified by this, and many of the abuses of the Eng- 
lish courts of chancery are abolished. 

Section XX. — The Right to Have Lawyers. 

Any suitor, in any court of this State, shall have the right to pros- 
ecute or defend his suit either in his own proper person, or by an 
Attorney or agent of his choice. 

This is a similar provision for civil suits to that made 
for criminal cases in Article I, Section 7. Only in crim- 
inal cases a lawyer will be furnished by the court, if the 
defendant is too poor to pay one; but in civil cases each 
party must pay his lawyer or go without. But every 
man has a right to be his own lawyer if he chooses. 

Section XXI. — Publication oe the Laws. 

The Legislature shall provide by law for the speedy publication of 
all statute laws, and of such judicial decisions, made within the 
State, as may be deemed expedient. And no general law shall be 
in force until published. 

It would not be right to punish people for disobeying 
laws they have no means of knowing. The laws passed 
at each session are published first in the official state 
newspaper, and afterwards in nearly every newspaper in 
the state, and are also published as a book for the libra- 
ries of lawyers. JSTo general law is in force till it is 
published in the official newspaper. 

The decisions of the supreme court are regularly 
published in a series of volumes. These are published 



122 CONSTITUTION OF WISCONSIN. [Art. VII. 

because they have the force of law; being interpreta- 
tions of the law which are accepted by all the courts of 
the state. 

Section XXII. — The Code. 

The Legislature, at its first session, after the adoption of this Con- 
stitution, shall provide for the appointment of three commission- 
ers, whose duty it shall be to inquire into, revise, and simplify 
the rules of practice, pleadings, forms and proceedings, and ar- 
range a system, adapted to the courts of record of this State, and 
report the same to the Legislature, subject to their modification 
and adoption; and such commission shall terminate upon the 
rendering of the report, unless otherwise provided by law. 

Such a commission was appointed, who reported a 
code of practice for the courts of this state, which em- 
bodies all the improvements upon the common law 
that are granted by this Constitution, and many more. 
This code was adopted, and all the practice of courts in 
this state is in accordance with it. The design of the 
code is to do away with technicalities in the practice of 
the courts as far as possible, except such as are needed 
to secure the ends of justice. 

Section XXIII. — Court Commissioners. 

The Legislature may provide for the appointment of one or more 
persons in each organized county, and may vest in such persons 
such judicial powers as shall be prescribed by law. Provided, that 
said power shall not exceed that of a judge of a circuit court at 
chambers. 

These officers are called court commissioners. By 
organized county is meant a county organized for judi- 
cial purposes. The judge of each circuit cannot be in 
every county in his circuit at once, and these court 



Sec. 1.] TAXATION UNIFORM. 123 

■commissioners act as his deputies. They cannot try 
cases, for that is reserved for the judge at the regular 
term of court. But they have all the powers of a 
court of chambers, that is, of a judge when he is not 
holding a regular court. 



ARTICLE VIII. 

FINANCE. 

Section I. — Taxation Uniform. 

The rule of taxation shall be uniform, and taxes shall be levied 
upon such property as the Legislature shall prescribe. 

Taxes should be uniform. — 

To make taxation uniform three things are needed: 

First, that the same things should be taxed and the 
same things exempt from taxation all over the state; 
which is the case. 

Second, that the value of property should be as- 
sessed alike; and this is done as nearly as possible, 
though it is never done perfectly. 

Third, that the percentage of taxation should be the 

same; which is the case. All state taxes are divided 

equally upon the assessed valuation of the whole state, 

all county taxes upon the assessed valuation of each 

county, and all town, village and city taxes upon the 

assessed valuation of the town, village or city. 

Assessment and collection of taxes. — The taxes levied for 
the state are apportioned between the several counties, in pro- 
portion to their equalized assessment. Then these state taxes 



124 CONSTITUTION OF WISCONSIN. [Art. VIII. 

with the county taxes are in a similar way divided between 
the several towns, villages and cities in each county. To 
these are added the local taxes. The taxpayer each year pays 
his share of all these taxes to the treasurer of his town, vil- 
lage or city, who pays the state and county taxes over to the 
county treasurer, and he in turn pays the state taxes to the 
state treasurer. 

The assessment for purposes of taxation has been previ- 
ously made by the local assessor in each town, village or city. 
Any error in assessment may be corrected by the local boards. 
Variations in the scale of assessment between the several di- 
visions of a county are equalized by the county board of su- 
pervisors. Similar variations between the counties are equal- 
ized by the State Board of Equalization. 



Section II. — Appropriations. 

No money shall be paid out of the treasury except in pursuance of 
an appropriation by law. No appropriation shall be made for the 
payment of any claim against the State, except claims of the 
United States and judgments, unless filed within six years after 

the claim accrued. 

[As amended Nov. 6, 1877.] 

I. Appropriations. — 

That is, the state treasurer has no right to pay out 
any money, except as he is authorized to do so by the 
legislature. There are certain regular expenses of the 
state government for which an appropriation has been 
made once for all. These expenses are paid yearly 
without any special appropriation; other appropriations 
are made when needed. 

II. Claims. — 

The object of the amendment to this section was to 
cut off certain old claims which had already been paid. 



Sec. 5. J ANNUAL TAX. 125 

Section III. — The Credit oe the State. 

The credit of the State shall never be given, or loaned, in aid of 
any individual, association, or corporation. 

The Constitution wisely prohibits the state from lend- 
ing its credit. Some of the states of our Union which 
have lent their credit to railroads and other corpora- 
tions have had to pay the debts of these concerns, caused 
by their mismanagement and final bankruptcy. 



Section IV. — Debts of the State. 

The State shaU never contract any public debt, except in the cases 
and manner herein provided. 

The provisions of the Constitution which follow, re- 
lating to the state debt, are very wise. They have kept 
our state more free from debt than any other state of 
our Union. 

Section V. — Annual Tax. 

The legislature shall provide for an annual tax sufficient to defray 
the estimated expenses of the State for each year; and whenever 
the expenses of any year shall exceed the income, the Legislature 
shall provide for levying a tax for the ensuing year, sufficient, 
with other sources of income, to pay the deficiency as well as the 
estimated expenses of such ensuing year. 

The ordinary expenses of each year must be paid by 
the year's taxes. They cannot be made a debt upon 
the state. But if, for any cause, there should be a 
deficit in any year, it must be paid by the taxes of the 
next year. The deficit must not go on increasing from 
year to year. 



126 CONSTITUTION OP WISCONSIN. [Art. VIII. 

The ordinary expenses of the state government in most 
years are now paid by the license fees on railroads and some- 
other corporations without any other tax. These license fees 
are really a tax on these corporations in return for which they 
are exempted from all taxation by counties, towns, villages or 
cities. 



Section VI. — Eestrictions on Debts. 

For the purpose of defraying extraordinary expenditures, the State 
may contract public debts, (but such debts shall never in the ag- 
gregate exceed one hundred thousand dollars.) Every such debt 
shall be authorized by law, for some purpose or purposes to be 
distinctly specified therein; and the vote of a majority of all the 
members elected to each house, to be taken by yeas and nays, 
shall be necessary to the passage of such law; and every such law- 
shall provide for levying an annual tax sufficient to pay the an- 
nual interest of such debt, and the principal within five years 
from the passage of such law, and shall specially appropriate the 
proceeds of such taxes to the payment of such principal and in- 
terest; and such appropriation shall not be repealed, nor the 
taxes be postponed, or diminished, until the principal and interest 
of such debt shall have been wholly paid. 

The power of tlie legislature to ran the state in debt 
is very carefully guarded: 

First. No other branch of the government can contract a 
debt. 

Second. The debt can only be for extraordinary expenses,. 
not for the regular annual expenses of carrying on the gov- 
ernment. 

Third. These debts altogether shall never exceed $100,000* 
at any one time. 

Fourth. If the legislature authorizes such a debt, it must 
be by loan, and the purpose for which the money is to be bor- 
rowed must be distinctly stated in the loan. 

Fifth. When the loan is voted in either house, three-fifths 
of the members must be present to make a quorum (Sec. 8),- 
and a majority of all the members elected must vote for it;. 



Sec. 7. J WAR DEBTS. 127 

that is, as the number now stands, in the assembly at least 
fifty-one members must vote for the bill; and in the senate at 
least seventeen. 

Sixth. The vote must be taken by yeas and nays, and, of 
course, the vote of each member recorded on the journal, so 
that any one may know how he voted. 

Seventh. Every law that makes a debt must provide for 
paying it, interest and principal, in five years. 

Eighth. The payment of the debt cannot be put off, but 
the taxes must be raised every year that shall pay it in five 
years at the farthest. 

These provisions of the Constitution have kept the 
state from having a heavy debt. There are few states 
of onr Union whose credit is so good, and whose debt 
has been so small as "Wisconsin. The state is now 
practically free from debt. 

Section VII.— War Debts. 

The legislature may also borrow money to repel invasioD, suppress- 
insurrection, or defend the State in time of war; but the money 
thus raised shall be applied exclusively to the object for which 
the loan was authorized, or to the re-payment of the debt thereby 
created. 

"War is a very costly luxury, and the expenses of a 
war cannot be paid in the same year, as the ordinary 
expenses of the state government can. The expenses 
of a war must be paid mostly from borrowed money. 
Therefore, the Constitution allows the legislature to 
contract a debt for war expenses. But the war must be 
a defensive war. The state cannot carry on an offensive 
war; that is a power which the United States reserves 
to itself. But the state may be obliged to defend itself 



-128 CONSTITUTION OF WISCONSIN. [Art. VIII. 

against insurrection by rebels at borne or invasion by a 
foreign foe, or may bave to prevent invasion by defend- 
ing itself beyond its own frontier. In that case tbe 
state can carry on war. 

Tbe legislature may borrow money to pay tbe ex- 
penses of a defensive war, and tbus create a war debt. 
It may also borrow money, if need be, to pay tbe debt 
wben it is due, and tbus keep up a debt, wbich is really 
tbe same debt witb tbe time of payment extended. 

Section VIII. — The Vote on Financial Measures. 

On the passage in either house of the Legislature, of any law which 
imposes, continues or renews a tax, or creates a debt, or charge, 
or makes, continues, or renews an appropriation of public, or 
trust money, or releases, discharges or commutes a claim, or de- 
mand of the State, the question shall be taken by yeas and nays, 
which shaU be duly entered on the journal; and three-fifths of 
aU the members elected to such house shall, in all such cases be 
required to constitute a quorum therein. 

Every vote upon a question in wbicb money is con- 
cerned must be a matter of public record, so that any 
one can tell at any time bow any member of tbe legis- 
lature voted upon any sucb question. Members feel 
-their responsibility more when their votes are taken by 
yeas and nays and entered upon the journal. 

Section IX. — No Debts Except by Legislature. 

No scrip, certificate, or other evidence of State debt, whatsoever, 
shall be issued, except for such debts as are authorized by the 
sixth and seventh sections of this Article. 

The state officers have no right to issue certificates of 
•debt, or anything that shall bind the state in any way, 



Sec. 10.] INTERNAL IMPROVEMENTS. 129 

except they are authorized to do so by a vote of the 
legislature, and the legislature itself has no right to 
authorize any debt except such as are authorized by 
sections 6 and 7. 

Section X. — Internal Improvements. 

The State shall never contract any debt for works of Internal Im- 
provement, or be a party in carrying on such works, but when- 
ever grants of land or other property shall have been made to 
the State, especially dedicated by the grant to particular works 
of Internal Improvement, the State may carry on such particular 
works, and shall devote thereto the avails of such grants, and 
may pledge or appropriate the revenues derived from such works 
in aid of their completion. 

"Works of internal improvement are such as railroads, 
canals, roads, bridges, the drainage of swamps, and the 
like. If the state should undertake such works as these 
it would be sure to run into debt; and it would be very 
possible that the money would not be wisely expended. 
Experience has shown that private persons and compa- 
nies can do such work better than governments can. 

An exception is made where grants have been made 
by the United States, or otherwise, to the state to carry 
on improvements. In that case the state is only a 
trustee to carry out the wishes of the government or 
persons who gave the property. The state has done 
this with the swamp lands given it by the United States. 
Half the proceeds of these are used to drain the other 
swamp lands. 

Wis. Con.— 9. 



130 CONSTITUTION OF WISCONSIN. [Art. IX» 



ARTICLE IX. 

EMINENT DOMAIN AND PROPERTY OF THE STATE. 

Section I. — Concurrent Jurisdiction and Free 
Navigation. 

The State shall have concurrent jurisdiction on all rivers and lakes 
bordering on this State, so far as such rivers, or lakes shall form 
a common boundary to the State, and any other State, or Terri- 
tory, now or hereafter to be formed, and bounded by the same: 
And the river Mississippi and the navigable waters leading into the 
Mississippi and St. Lawrence, and the carrying places between the 
same shall be common highways and forever free, as well to the 
inhabitants of the State, as to the citizens of the United States, 
without any tax, impost or duty therefor. 

I. Concurrent jurisdiction.— 

The state has sole jurisdiction within its own boun- 
daries on land; no other state has any jurisdiction there. 
But where a river or lake makes a part of the boundary 
of the state, it is not easy to tell where the exact boun- 
dary is. It saves some trouble and settles some vexa- 
tious questions to give all the states that border on Lake 
Michigan, for instance, each the same jurisdiction any- 
where on the lake. There is nothing to tax on the 
lake except the ships and boats, and these are taxed 
where they are owned, so that the only things that are 
affected by the question of jurisdiction, on the lakes 
and rivers, are the crimes and misdemeanors committed 
on these rivers and lakes. These may be tried in the 
courts of any state that border on the lake. So, also, 



Sec. 1.] JURISDICTION AND NAVIGATION. 131 

with Lake Superior. So, also, with offenses on the 
Mississippi river, when that river forms the boundary 
between this state and Minnesota or this state and 
Iowa; offenses committed on it may be tried in the 
courts of either state. This concurrent jurisdiction on 
Lakes Michigan and Superior, and all rivers that bound 
the state, is given by the acts of Congress which ad- 
mitted this state and the neighboring states into the 
Union. This concurrent jurisdiction does not depend 
upon this section of the Constitution, but would exist 
whether it was mentioned in the Constitution or not. 

The state has given the counties bordering on Lakes 
Michigan and Superior and the Mississippi river con- 
current jurisdiction for offenses committed on these 
waters; and also to all the counties bordering on Lake 
Winnebago for all offenses committed on that lake. 

II. Free navigation. — 

The state of Wisconsin guarantees by this clause of 
the Constitution, that all the waters over which it has 
control shall be free highways. No tolls or duties are 
charged for any ship or goods owned by citizens of the 
United States. In practice it is scarcely worth while 
for the state of Wisconsin to levy tolls or duties on the 
few foreign ships that come into our ports; so that 
really the navigable waters of the state are free for the 
ships and commerce of all nations, so far as the state is 
concerned. The navigable waters of Wisconsin are 
thus free highways for the commerce of all the world, 



132 CONSTITUTION OF WISCONSIN. [Art. IX. 

subject only to the duties on foreign commerce which 
Congress imposes. 

Section II. — Property oe Territory Goes to State. 

The title to all lands and other property which have accrued to 
the Territory of Wisconsin by grant, gift, purchase, forfeiture, es- 
cheat, or otherwise, shall vest in the State of Wisconsin. 

This section belongs logically nnder Article XIV, which 
regulates the change of Wisconsin from a territory to a state, 
and substantially the same thing is given over again in one 
of the clauses of XIV, 4. 

Section III. — Eminent Domain 

The people of the State, in their right of sovereignty, are declared 
to possess the ultimate property, in and to all lands within the 
jurisdiction of the State; and all lands the title to which shall 
fail from a defect of heirs, shall revert or escheat to the people. 

I. Eminent domain. — 

The right of eminent domain is claimed by all 
civilized governments. The state has the ultimate title 
to all land within its boundaries, and can take any land 
from its owner if it is needed for public purposes, only 
it must pay a fair price for it. (I, 13.) This right be- 
longed to the United States, but when Congress admit- 
ted this state to the Union it gave this right of ultimate 
sovereignty to the state. 

This right of eminent domain is exercised whenever the 
land needed for any public buildings cannot be purchased, 
whenever a road or street or a public park is laid out, and 
whenever a railroad or canal is constructed. In the latter 
case, the railroad or canal is a public highwaj-; owned and 
constructed by a private corporation, it is true, but operated 



Sec. 3.] EMINENT DOMAIN. 133 

for the public benefit, and liable to be controlled by law or to 
be taken from its owners, should they abuse their trust. Pri- 
vate property can be taken for railroads and canals only be- 
cause they are public highways. 

This right of eminent domain is the right of a sovereign — 
in this country the sovereign people — and it is meant to be 
used only for the public good. Highways for commerce are 
an absolute necessity of any civilized society. But for land 
transportation artificial highways must be made. These have 
now come to be railways, wherever railways can be built. 
These railways could not be built if they had to buy the 
right of way of each land owner at his own price. The state, 
therefore, very justly uses the right of eminent domain to 
take the land needed for railways at a fair price. This is 
done for the public good. But as the practical monopoly of 
the carrying trade enjoyed by the railways is very liable to 
be misused for the injury of the public, the state has rightly 
reserved the right to control these chartered monopolies 
(XI, 1), whenever it is necessary to do so for the public good. 
They are allowed to exercise the sovereign right of eminent 
domain only for the public good. But they do not have this 
privilege given to them without any duties in return. They 
are to use the g-reat powers given to them for the public good. 
Should they fail to do so, the state can limit their powers or 
destroy them altogether. They are the servants of the peo- 
ple, the creatures of the state, not its masters and rulers. 

II. Escheats. — 

In accordance with the same right, when any one 
dies and leaves no heirs, his property goes to the state. 
Land only is spoken of in this section, but the same 
principle applies to all property. 

Any property that thns escheats to the people goes 
into the school fund. (X, 2.) 



134 CONSTITUTION OF WISCONSIN. [Art. X. 



ARTICLE X, 

EDUCATION. 
Section I. — The Supervision oe Public Instruction. 

The supervision of public instruction shall be vested in a State 
Superintendent, and such other officers as the Legislature shall 
direct. The State Superintendent shall be chosen by the qualified 
electors of the State, in such manner as the Legislature shall pro- 
vide; his powers, duties and compensation shall be prescribed by 
law. Provided, that his compensation shall not exceed the sum 
of twelve hundred dollars annually. 

The officers who have the supervision of public in- 
struction are a superintendent of public instruction, 
and his assistants, and county and city superintendents. 
The state superintendent is chosen for a term of two 
years, at the same time as the other state officers, and 
appoints his assistants. County superintendents are 
elected for the term of two years, at the general elec- 
tion, like other county officers. They examine and 
license teachers, and have the general supervision of 
the schools and teachers in their respective jurisdictions. 
Several of the larger counties in the state are divided 
each into two superintendent districts. Many cities 
have their own systems of school supervision; generally 
under city superintendents, who may or may not be 
the principals of the high schools. The local supervi- 
sion of schools is in the hands of the district boards, or, 
where the town system of schools has been adopted, in 
the hands of the town board of education. 



Sec. 2.] THE SCHOOL FUND. 135 



Section II. — The School Fund. 

The proceeds of all lands, that have been or hereafter may be 
granted by the United States to this State for educational pur- 
poses (except the lands heretofore granted for the purposes of a 
University) and all moneys, and the clear proceeds of all property 
that may accrue to the State by forfeiture or escheat, and all 
moneys which may be paid as an equivalent for exemption from 
military duty; and the clear proceeds of all fines collected in the 
several counties for any breach of the penal laws, and all moneys 
arising- from any grant to the State where the purposes of such 
grant are not specified, and the five hundred thousand acres of 
land, to which the State is entitled by the provisions of an act of 
Congress entitled "An act to appropriate the proceeds of the sales 
of the public lands, and to grant pre-emption rights," approved 
the fourth day of September, one thousand eight hundred and 
forty-one; and also the five per-centum of the nett proceeds of 
the public lands to which the State shall become entitled on her 
admission into the Union (if Congress shall consent to such appro- 
priation of the two grants last mentioned) shall be set apart as a 
separate fund, to be called "The School Fund," the interest of 
which and all other revenues derived from the school lands, shall 
be exclusively applied to the following objects, to-wit: 

First. To the support and maintenance of common schools in 
each school district, and the purchase of suitable libraries and 
apparatus therefor. 

Second. The residue shall be appropriated to the support and 
maintenance of Academies and Normal Schools, and suitable libra- 
ries and apparatus therefor. 

I. The sources of the school fund. — 

A very liberal provision is thus made for a school 
fund. The following are the sources of that fund: 

1. Property which is forfeited or escheated to the state. 
Property escheats to the state when the owner dies without a 
will and without heirs. 

2. Money paid for exemption from military duty. 

3. The net proceeds of all penal fines. 

4. All unspecified grants to the state. 

5. Section sixteen in each township. 

6. The five hundred thousand acres of land first given for 



136 CONSTITUTION OF WISCONSIN. [Art. X. 

the Eock river canal, and afterward by consent of Congress 
given to the school fund. 

7. The five per cent, of the net proceeds of the sale of all 
public lands, first given to the state to build roads and canals. 

8. One-half the proceeds of the swamp lands given to the 
state by Congress in 1850 and 1855. This is now set apart as 
a normal school fund. 

This fund is now quite large. See the Blue Book. 

II. Apportionment of the school fund. — 

The interest of the school fund is apportioned to the 
districts which have maintained school six or more 
months during the preceding year. The legislature has 
power under this section of the Constitution to furnish 
libraries and apparatus to the schools out of the school 
fund; but it has not chosen to do so. But school libra- 
ries are now required to be purchased by the towns. 

III. State tax. — 

There is also an annual state school tax of one mill 
on the dollar. This added to the income of the school 
fund makes a large sum annually to be distributed to 
those districts which maintain a legal school. This is 
apportioned to these districts according to the number 
of children of school age in each. The additional 
county tax required in Section 4 also adds considerably 
to the amount apportioned to the districts which main- 
tain a legal school. 

IV. Normal schools. — 

The normal school fund, which comes from the sale 
of swamp lands given to the state by the United States 



Sec. 3.] COMMON SCHOOLS. 137 

for that purpose, is administered by the Board of 
Regents of Normal Schools. Some additional appro- 
priations are made by the legislature. The fund is used 
for conducting teachers' institutes and building and 
maintaining normal schools. Of these there are seven. 
This state has more normal schools in proportion to the 
population than any other state. 

V. Teachers' institutes. — 

Teachers' institutes are supported partly from the 
normal school fund, partly from additional appropria- 
tions by the legislature and partly from the fees paid by 
persons examined for teacher's certificates. 

Section III.— Common Schools. 

The Legislature shall provide by law for the establishment of Dis- 
trict Schools, which shaU be as nearly uniform as practicable; 
and such schools shall be free and without charge for tuition, to 
all children between the ages of four and twenty years; and no 
sectarian instruction shall be allowed therein. 

I. Reasons for our public schools. — 

The experience of all modern nations shows that the 
people must be educated to make the nation strong or fit 
for freedom. The strength of the German empire is in 
her schools and universities. The weakness of some 
other nations of Europe is in the ignorance of the labor- 
ing classes. We thus need popular education to make 
and keep our nation strong, for "knowledge is power." 

But we also need popular education to make and keep 
us fit for freedom. Experience has shown that no na- 



138 CONSTITUTION OF WISCONSIN. [Art. X. 

tion can long be free unless it is intelligent. It is 
never the interest of the majority of the people, any- 
where, to be oppressed by unjust laws or aristocratic 
privileges or corrupt governments. "Where a whole 
people is intelligent even if ruled by no higher motive 
than self-interest, they will maintain their freedom 
against military usurpers, corrupt demagogues and 
wealthy classes and corporations. Those who govern 
any nation should be intelligent, and in this country, 
where the people are the rulers, the people should be 
intelligent. 

Another reason for popular education is that the in- 
herent rights of each individual to liberty and the pur- 
suit of happiness (I, 1), guaranteed by this Constitution, 
may be secured to each one. Every citizen of this state 
should have a fair chance in life secured to him. And 
this can only be given by an education which shall fit 
him to perform intelligently the ordinary duties of life, 
and that shall give him the clue to all the knowledge 
possessed by the world. Then if all outside hindrances 
are removed from his pathway, as they are in this coun- 
try, each person with this capital of a common school 
-education to start with, can make his own place in life, 
and be "the architect of his own fortune." 

II. The schools are free.— 

The common schools in this country are free to all 
persons of school age, as they are not in any other coun- 
:try in the world. Here the tax-payers educate the chil- 






Sec. 3.] COMMON SCHOOLS. 139 

dren of poor and rich alike, and the state thus offers 
every child an opportunity for a fair education. 

III. No sectarian instruction. — 

No sectarian instruction is allowed in our schools, for 
two reasons: first, because we have several different 
forms of faith in this state, no one of which has a right 
to have the powerful influence of the schools used in its 
favor; and second, because the experience of our coun- 
try has shown that religion thrives best when it is in- 
dependent of the state, asking no favors from it, and 
not being controlled by it.* 

IV. The public school system. — 

The public schools of the state are as follows: 
1. The district schools. These are in the country, in 
the villages and in some cities. The people of each dis- 
trict, including women as well as men, meet on the 
first Monday in July and elect a district board 
of three, one each year for three years, except 
as vacancies are filled. The people also decide at 
the school meeting the amount of taxes to be raised, 
the length of term of school, the building or repairing 
of the school houses and other similar questions. Ad- 
journed or special school meetings may be held at other 
times. The district board employ the teachers and de- 
termine the course of study and the rules for the gov- 



* " Nor heeds the sceptic's puny hands, m 

While near her school the church spire stands ; 

Nor fears the blinded bigot's rule, 

While near the church spire stands her school. 

— Whittier. 



140 CONSTITUTION OP WISCONSIN. [Art. X. 

ernment of the school. In cities and villages the dis- 
trict school has several teachers and is divided into de- 
partments, becoming thus a graded school. The dis- 
trict schools are nnder the supervision of comity super- 
intendents of schools, who examine and license the 
teachers and inspect the schools. 

2. The city schools. In most cities a school board 
or city board of education takes the place of the district 
board. This is either elected by the people or appointed 
by the mayor or by the common council. The common 
council vote the money for the schools and the school 
board spends the money, employs the teachers and gov- 
erns the schools. Usually each ward of a city has a 
school house of its own with a graded school, which is 
called a ward school. The city schools are each under 
the supervision of a city superintendent, who is usually 
appointed by the school board, but in some cities is 
elected by the people. 

3. The high schools. A high school may be gov- 
erned by the same board as the city or district schools. 
But a high school may also be established by a union of 
several districts to form a high school district. The state 
gives a certain appropriation each year to high schools on 
condition that they keep up certain courses of study .and 
employ teachers with certain qualifications. Nearly all 
the high schools of the state comply with these condi- 
tions and accept these appropriations. 

The high schools are under the supervision of the state 



Sec. 4.] SCHOOL TAX. 141 

superintendent and his assistant, the high school in- 
spector. 

4. The normal schools. These are intended to pre- 
pare professional teachers. There is also a course in 
pedagogy at the -university intended to give university 
students special instruction in the science of education. 
The high schools are encouraged to have classes in the 
theory and art of teaching. 

5. The state university. The high schools prepare 
students for admission to the university. 

Besides this system of public schools, supported by the 
state or by localities, there are a considerable number of 
colleges, academies and schools, which are supported by 
tuition fees or by endowments given to them. Many of 
them belong to some church, and give religious instruc- 
tion, which the public schools cannot give. 

Section IV. — School Tax. 

Each town and city sliaU be required to raise, by tax, annuaUy, for 
the support of common schools therein, a sum not less than one 
half the amount received by such town or city respectively for 
school purposes from the income of the school fund. 

Additional taxes are thus required to be raised by 
towns and cities. But the greater share of the school 
tax is raised by the school districts, each for its own 
school by vote of the people of the district. 



142 CONSTITUTION OP WISCONSIN. [Art. X. 

Section V. — Apportionment of School Fund. 

Provision shall be made by law, for the distribution of the income 
of the school fund among the several towns and cities of the 
State, for the support of common schools therein, in some just 
proportion to the number of children and youth resident therein, 
between the ages of four and twenty years, and no appropriation 
shall be made from the school fund to any city, or town, for the 
year in which said city or town shall fail to raise such tax; nor 
to any school district for the year in which a school shall not be 
maintained at least three months. 

The income of the school fund is distributed among 
the towns and cities of the state in proportion to the 
number of persons between four and twenty years old,, 
in those districts which have maintained school for six 
months during the preceding year. This bonus is ef- 
fective in inducing nearly every district in the state to 
maintain a legal school. 

Section VI. — The State University. 

Provision shall be made by law for the establishment of a State 
University, at or near the seat of State government, and for con- 
necting with the same, from time to time, such colleges in differ- 
ent parts of the State, as the interests of education may require. 
The proceeds of all lands that have been, or may hereafter be 
granted by the United States to the State for the support of » 
University, shall be and remain a perpetual fund, to be called 
"The University Fund," the interest of which shall be appropri- 
ated to the support of the State University, and no sectarian in- 
struction shall be allowed in such University. 

I. Organization. — 

The state university has been established at Madison. 
No colleges in other parts of the state have yet been con- 
nected with it. The university is governed Jby a board 
of regents, consisting of the state superintendent and- 



Sec. 6.] THE STATE UNIVERSITY. 143 

twelve persons appointed by the governor. It is open 
to both sexes, in all its departments, and provides free 
tuition for residents of Wisconsin. It is one of the great 
state universities of the interior states. 

II. Income. — 

In addition to the land grant given by Congress for 
the university, Congress in 1862 gave a land grant to 
each state in the Union for agricultural colleges. In 
this state this grant was given to the state university for' 
an agricultural college connected with it. In addition 
a state tax is levied each year for the university, giving 
it a large income. See Blue Book. 

III. No sectarian instruction. — 

~No sectarian instruction is allowed in the state uni- 
versity for the same reason that none is allowed in the 
common schools. 

IV. Agricultural college. — 

A large land grant was given by Congress to the states 
to establish in each a school of agriculture and the me- 
chanic arts. In this state this has been made a depart- 
ment of the state university. 

A system of farmers' institutes under the direction of 
the university was originated by Wisconsin, and has 
been imitated by other states. The effect of these two 
agencies has been to add very greatly to the prosperity 
of the state. 



144 CONSTITUTION OF WISCONSIN. [Art. X. 



Section VII and VIII. — School Land Commissioners. 

(7) The Secretary of State, Treasurer and Attorney General, shall 
constitute a board of commissioners for the sale of the School 
and University lands, and for the investment of the funds arising 
therefrom. Any two of said commissioners shall be a quorum for 
the transaction of all business pertaining to the duties of their 
office. 

(8) Provision shall be made by law for the sale of all School and Uni- 
versity lands, after they shall have been appraised; and when any 
portion of such lands shall be sold and the purchase money shall 
not be paid at the time of the sale, the commissioners shall take 
security by mortgage upon the land sold for the sum remaining 
unpaid, with seven per cent interest thereon, payable annually at 
the office of the Treasurer. The commissioners shall be author- 
ized to execute a good and sufficient conveyance to all purchasers 
of such lands, and to discharge any mortgages taken as security, 
when the sum due thereon shall have been paid. The commis- 
sioners shall have power to withhold from sale any portion of 
such lands, when they shall deem it expedient, and shall invest 
all moneys arising from the sale of such lands, as well as all 
other University and School funds, in such manner as the Legisla- 
ture shall provide, and shall give such security for the faithful 
performance of their duties as may be required by law. 

The school fund is thus cared for by a board of three 
state officers, under the direction of the legislature. 



Sec. 1.] UNDER GENERAL LAWS. 145 



ARTICLE XI. 

CORPORATIONS. 

This article lias been essentially modified by the 
amendments forbidding special legislation. These 
amendments prohibit the legislature from granting cor- 
porate powers or privileges by special law r s, and also pro- 
hibit the legislature from incorporating any town, vil- 
lage or city, or amending the charter thereof, by a spe- 
cial law. 

Section I. — Corporations Shall be Under General Laws. 

Corporations without banking' powers or privileges niay be formed 
under general laws, but shall not be created by special act, except 
for municipal purposes, and in cases Avhere in the judgment of 
the Legislature, the objects of the corporation cannot be attained 
under general laws. All general laws or special acts, enacted un- 
der the provisions of this section, may be altered or repealed by 
the Legislature at any time after their passage. 

I. Laws must be general. — 

Corporate pow r ers cannot now be granted by a special 
law. All laws made in regard to corporations mnst now 
be general, and apply to all similar corporations. ~No 
special charter can now be given to any corporations, 
either private or municipal. 

II. But may be altered or repealed. — 

Where the legislature of any state has once given cor- 
porate powers without reserve, they cannot be revoked 

Wis. Con.— 10. 



146 CONSTITUTION OF WISCONSIN. [Art. XI. 

without the consent of the body which receives them.* 
For instance, if the legislature of this state had given 
some railroad extraordinary and even dangerous privi- 
leges, were it not for this section the legislature could 
not repeal or alter the charter that gave those extraor- 
dinary privileges except with the consent of the railroad. 
But by this section the legislature can always control 
all the corporations in the state. 

Section II. — Taking Private Property for Public Use. 

No municipal corporation shall take private property for public 
use, against the consent of the owner, without the necessity 
thereof being first established by the verdict of a jury. 

If the proper officers of a city, town or village cannot 
agree with the owner of property which they take for 
public use, as, for instance, when a street is opened, the 
owner can call for a jury, who shall decide what the 
property is worth. 

Section III. — Organization op Municipal Corporations. 

It shall be the duty of the Legislature, and they are hereby em- 
powered, to provide for the organization of cities and incorpo- 
rated villages, and to restrict their powers of taxation, assess- 
ment, borrowing money, contracting debts, and loaning their 
credit, so as to prevent abuses in assessments and taxation, and in 



* In the celebrated case of Dartmouth College against Woodward, in which 
Daniel Webster was attorney for the plaintiff, it was decided by the supreme 
court of the United States that charters are in the nature of a contract be- 
tween the government and the corporation and consequently cannot be 
altered or repealed by the government without the consent of the corpora- 
tion, under the "United States Constitution, article 1, section 10, which for- 
bids states to pass laws impairing the obligations of contracts. (Wheaton's 
reports of the United States supreme court, vol. VI, p. 518.) 

But when the constitution of a state reserves the right of repeal, as in this 
section, all such contracts are made and accepted by the corporations with 
the right of repeal or amendment by the legislature as one of the implied 
conditions of the contract itself, which therefore can be amended or repealed 
by the legislature at its pleasure. (Wis. Reports, vol. Ill, pp. 287 and 611.) 



Sec. 3.] MUNICIPAL CORPORATIONS. 147 

contracting debts by such municipal corporations. No county, 
city, town, village, school district or other municipal corporation, 
shall be allowed to become indebted in any manner, or for any 
purpose, to any amount, including existing indebtedness, in the 
aggregate exceeding five per centum on the value of the taxable 
property therein, to be ascertained by the last assessment for 
state and county taxes, previous to the incurring of such indebt- 
edness. Any county, city, town, village, school district or other 
municipal corporation, incurring any indebtedness as aforesaid, 
shall, before or at the time of doing so, provide for the collection 
of a direct annual tax sufficient to pay the interest on said debt 
as it falls due, and, also, to pay and discharge the principal 
thereof within twenty years from the time of contracting the 

[As amended Nov. 3, 1874.] 

I. Restrictions on municipal debts. 

Under the amendment to this article, municipal cor- 
porations of all kinds are prohibited from running into 
debt to more than five per cent, of their taxable prop- 
erty, and are required to pay all debts within twenty 
years. Many counties, cities and towns have been and 
still are loaded down with enormous debts, incurred to 
build railroads. The object of this amendment is to pre- 
vent this in future. 

II. Classification of cities. — Cities are divided into four 
classes: 

1. The first class comprises cities with a population of one 
hundred and fifty thousand or over. Milwaukee is the only 
such city in Wisconsin. Consequently a general law for the 
government of cities of the first class is really a special law 
for Milwaukee. 

2. The second class comprises cities with a population of 
forty thousand or over and under one hundred and fifty 
thousand. There are no such cities at present in Wisconsin. 

3. The third class comprises cities containing ten thousand 
or over and under forty thousand. 



148 CONSTITUTION OF WISCONSIN. [Art. XI. 

4. The fourth class comprises cities containing less than 
ten thousand population. When a Tillage reaches the pop- 
ulation of fifteen hundred, by the state or United States cen- 
sus, it becomes a city of the fourth class. 

There is a general law for the government of each class of 
cities. But most of the cities were incorporated under special 
charters before the Constitution was amended to prevent this. 
Any such city ma3 r , however, by a vote of its common council, 
adopt the general law for the government of cities, and all 
new cities must be governed by the general law. 

III. City government. — Officers of cities of the first class 
are a mayor, two aldermen from each ward, together con- 
stituting a common council, a treasurer, a comptroller, an at- 
torney, clerk, engineer, tax commissioners, an assessor for 
each ward, a board of public works, a school board, a board 
of commissioners of the public debt, a board of health, one or 
more city physicians, a chief of police, a chief engineer of the 
fire department, one or more harbor masters, a supervisor for 
each ward, a justice of the peace and a constable for each 
ward, policemen, bridge tenders and street commissioners. 

Officers of other cities are a mayor, two aldermen for each 
ward, one justice of the peace, one constable and one super- 
visor for each ward, treasurer, clerk, comptroller, attorney, 
assessor, engineer, chief of police, city physician, street com- 
missioner, chief of fire department, board of public works, 
board of school commissioners, and one or more policemen. 
The council may dispense with some of these offices or create 
others. 

Cities under special charters have substantiallj' the same or- 
ganization. 

The mayor, treasurer, comptroller, assessor, aldermen, jus- 
tices of the peace and supervisors are elected by the people. 
The other officers are appointed by the mayor or by the 
council. The term of office is one year, but in some cities is 
two years. Justices of the peace have a term of two years 
everywhere under the Constitution. 

In cities of the first, second and third classes the police- 



Sees. 4-5.] banks. 149 

men and firemen are appointed by a board of police and fire 
commissioners, consisting of four persons, not more than 
two of whom can belong to the same political party. The ap- 
pointments of policemen and of firemen are on examination 
and for merit alone, and are on the same general plan as 
the appointments to the classified civil service of the United 
States. 

In cities of the first and second class there is a classified 
civil service for all subordinate positions on the same gen- 
eral plan as that of the United States. 

IV. Organization of villages. — At first all villages were or- 
ganized under special charters. But since the amendment 
forbidding special legislation, all new villages have been or- 
ganized under the general law and most of the older villages 
have either become cities or have reincorporated under the 
general law, so that there are not many villages now under 
special charter. 

The elective officers of a village under the general law are 
a president, six trustees, a clerk, a treasurer, a supervisor, 
a marshal and a constable, all elected for one year, and two 
justices of the peace, elected for two years each, one each 
year. A village may also have a police justice and an as- 
sessor. 

Sections IV and V. — Banks. 

(4) The [Legislature shall not have power to create, authorize or 
incorporate, by any general, or special law, any bank, or banking 
power or privilege, or any institution or corporation having any 
banking power or privilege whatever, except as provided in this 
article. 

(5) The Legislature may submit to the voters, at any general elec- 
tion, the question of "bank" or "no bank," and if at any such 
election a number of votes equal to a majority of all the votes 
cast at such election on that subject shall be in favor of Banks* 
then the Legislature shall have power to grant Bank charters, or 
to pass a general banking law, with such restrictions and under 
such regulations as they may deem expedient and proper for the 
security of the bill holders. Provided, that no such grant or law 



150 CONSTITUTION OF WISCONSIN. [Art. XI. 

shall have any force or effect until the same shall have been sub- 
mitted to a vote of the electors of the state, at some general 
election, and been approved by a majority of the votes cast on 
that subject at such election. 

The amendment which constitutes Article IV, Sec- 
tions 31 and 32, of this Constitution, annuls so much of 
these two sections as allow T special laws or charters to 
banks. All banking laws must be general. 

Practically, the system of state banks established un- 
der this section to issue bank bills, was annulled by the 
United States when Congress established the system of 
national banks, in 1863. There are still state banks 
with other banking powers, but they do not issue bills. 

The United States does not prohibit state banks of 
issue, and such banks could lawfully be organized in 
this state now, under the general banking law; but the 
United States does tax the circulation of all state banks 
ten per cent., so that they are no longer profitable to 
carry on; and, therefore, there are no longer any banks 
in this state or any other state of our Union which issue 
bank bills under state laws. 

The power to issue bills needs to be carefully guarded. 
Bank bills circulate as money, and are continually pass- 
ing from hand to hand. Very few people can have the 
information by which they can tell which are good and 
which are bad among a great number of banks situated 
in many states of the Union. It was therefore right 
for the state to regulate the whole matter of banking, 
and throw around it such restrictions as would make 



Sees. 4-5.] banks. 151 

bank bills always good, and convertible into gold and 
silver. 

This was a subject on which there were so many 
opinions, and one of such importance, that the conven- 
tion which framed the Constitution did not attempt to 
settle it, but left it for the people at the general election 
in 1851, when it was decided in favor of having banks. 
A general banking law was passed by the next legisla- 
ture, and submitted to the people at the general election 
in 1852, and approved by them. Several amendments 
have since been made, and each was voted on by the 
people. Several special charters have also been granted 
to particular banks, which have been approved of by a 
vote of the people. These votes were what would now 
be called a referendum. 

Happily, the United States has now taken the whole 
matter of the currency into its own hands. TVe now 
have a national currency, composed of the United States 
notes, and the notes of the national banks chartered by 
Congress. These are guaranteed by the United States, 
so that everyone who takes one of these bills may be 
sure that his money is as good as the United States itself. 
The only banks in this state which now issue bills are 
national banks. But there are many corporations still 
in existence with banking powers in every respect, ex- 
cept that of issuing bills. They are supervised by a 
state bank examiner. 



152 CONSTITUTION OF WISCONSIN. [Art. XII. 



ARTICLE XII. 

AMENDMENTS. 
Section I. — Amendments, How Made. 

Any amendment, or amendments to this Constitution may be pro- 
posed in either house of the Legislature, and if the same shall be 
agreed to by a majority of the members elected to each of the 
two houses, such proposed amendment, or amendments, shall be 
entered on their journals, with the yeas and nays taken thereon, 
and referred to the Legislature to be chosen at the next general 
election; and shall be published for three months previous to the 
time of holding such election, and if, in the Legislature so next 
chosen, such proposed amendment, or amendments, shall be agreed 
to by a majority of all the members elected to each house, then 
it shall be the duty of the Legislature to submit such proposed 
amendment, or amendments, to the people in such manner, and 
at such time, as the Legislature shall prescribe; and if the people 
shall approve and ratify such amendment, or amendments by a 
majority of the electors voting thereon, such amendment, or 
amendments, shall become part of the Constitution. Provided, 

I that if more than one amendment be submitted, they shall be 
submitted in such manner that the people may vote for or against 
such amendments separately. 

The process of amending the Constitution is as fol- 
lows: 

1. An amendment may be proposed in either house. 

2. The vote must be taken by yeas and nays. 

3. The proposed amendment must be agreed to by a 
majority of all the members elected to each house. 

4. It must be published for three months before the 
next general election. 

5. It must be agreed to by a majority of all the mem- 
bers of each house in the next legislature. 



Sec. 2.] CONSTITUTIONAL CONVENTION. 153 

6. It must be submitted to the people. 

7. It must have a majority of all votes cast on that 
subject. 

Ample opportunity is thus given for discussion, and 
it is not likely that a very unwise measure could run 
the gauntlet of all the criticism in the legislature and 
in the newspapers. 

It is not necessary that a proposed amendment should 
have a majority of all the votes cast at that election; but 
only that it shall have a majority of all cast on that 
subject. 

All amendments to this Constitution have been made 
in this way. 

Section II. — Constitutional Convention. 

If at any time a majority of the Senate and Assembly shall deem 
it necessary to call a convention to revise or change this Consti- 
tution, they shall recommend to the electors to vote for or against 
a convention at the next election for members of the Legislature. 
And if it shall appear that a majority of the electors voting 

| thereon, have voted for a convention, the Legislature shall, at its 
next session, provide for calling such convention. 

It may well happen that the people of the state shall 
become dissatisfied with the Constitution, and wish to 
have it revised or changed entirely for a new one. In 
this case, it is better to have a constitutional convention 
called for that special purpose, than to take up the time 
of the legislature with it. The process of calling a con- 
vention to revise or change the Constitution is as fol- 
lows: 



154 CONSTITUTION OF WISCONSIN. [Art. XII. 

1. The legislature may propose a convention by a 
joint resolution. 

2. The people vote on it at the next general election. 

3. If a majority of all the votes cast on that subject 
are for a convention, the next legislature provides for 
calling it. 

4. This convention will be elected by the people at 
such time and in such a way as the legislature may 
provide. 

5. The convention need not submit its action to the 
people. A Constitution made by such a convention is 
binding without a vote of the people; for the people 
have delegated their sovereign power to the members of 
the convention. But if the legislature in their call of 
the convention have prescribed that the Constitution 
shall be submitted to a vote of the people, then the con- 
vention was elected with that limited power of proposing 
a new or revised Constitution, but without the power 
of making it. In that case a vote of the people is nec- 
essary, or, if the convention elected with full powers 
think best, nevertheless, to submit their work to the 
people, they have a right so to do; and in that case the 
new or revised Constitution is not binding until ratified 
by the people's vote. 

No constitutional convention has yet been called 
under this section. The amendments that have been 
made thus far have all been made in the way prescribed 
in the previous section. 



SeC. 1.] GENERAL ELECTIONS. 155 

ARTICLE XIII. 

MISCELLANEOUS PROVISIONS. 

Section I. — General Elections. 

The political year for the state of Wisconsin shall commence on 
the first Monday in January in each year, and the general elec- 
tion shall be holden on the Tuesday next succeeding the first 
Monday in November. The first general election for all state and 
county officers, except judicial officers, after the adoption of this 
amendment, shall he holden in the year A. D. 1884, and there- 
after the general election shall be held biennially. All state, 
county or other officers, elected at the general election in the 
year 1881, and whose term of office would otherwise expire on 
the first Monday of January in the year 1884, shall hold and con- 
tinue in such offices respectively until the first Monday in Janu- 
ary in the year 1885. 

[As amended Nov. 7, 1882.] 

The object of the amendment was to secure biennial 
elections. Before this the state officers and some of the 
county officers were elected in the odd years, and Bepre- 
sentatives in Congress and most of the county officers 
in the even years. By the amendment, all United 
States, state and county elections, except for judges, 
come in the even years. The state and county officers 
thus elected enter upon their offices the first Monday 
in January of every odd year. The state officers elected 
in 1881 had their term extended to three years by this 
amendment. 



156 CONSTITUTION OF WISCONSIN. |_Art. XIII. 

Section II. — Dueling. 

Any inhabitant of this State who xnay hereafter be engaged, either 
directly or indirectly in a duel, either as principal or accessory, 
shall forever be disqualified as an elector, and from holding any 
office under the Constitution and laws of this State, and may be 
punished in such other manner as shall be prescribed by law. 

Dueling lias scarcely ever been attempted in this 
state. By this section all duelists are punished by being 
disfranchised and disqualified from holding office. 

Dueling is also punished with imprisonment in the 
state prison, and if any one is killed in a duel it is con- 
sidered as murder in the second degree and punished ac- 
cordingly. 

Section III. — Disqualifications for Office. 

No member of Congress, nor any person holding any office of profit 
fc or trust under the United States (Postmasters excepted) or under 
any foreign power: no person convicted of any infamous crime in 
any court within the United States; and no person being a de- 
faulter to the United States, or to this State, or to any county, or 
town therein, or to any State, or Territory within the United 
States, shall be eligible to any office of trust, profit, or honor in 
this State. 

This section prohibits different classes of persons 
from holding office in the state, for very different rea- 
sons. 

1. Members of Congress and officers of the United 
States are prohibited from holding office in this state 
while they are Congressmen or federal office holders, be- 
cause their duty to the general government would be 
likely to interfere with their duties to the state. Mem- 
bers of Congress are not United States officers in the 



Sec. 3.] DISQUALIFICATIONS FOR OFFICE. 157 

strict legal sense of the word, and therefore they are 
named separately. 

Postmasters are excepted; they can hold office under 
the state, but they cannot be members of the legisla- 
ture. (IV, 13.) 

2. Persons holding office under any foreign power are 
prohibited from holding office here, because they would 
not be likely to serve two separate governments with 
loyalty; and cases might easily arise in which the in- 
terests of the two governments, and the duties of the 
two offices, would be opposite. 

Therefore, officers of foreign powers, even when they 
are our own citizens, as consuls frequently are, are pro- 
hibited from holding offices in "Wisconsin. 

3. IsTo person convicted of an infamous crime any- 
where in the United States can hold office in Wiscon- 
sin, because he has shown that he is not worthy of trust 
or honor; and the state would disgrace itself by putting 
a convicted criminal into a place of honor or trust. The 
person must have been convicted of the crime in some 
court; for the law presumes every man innocent till he 
is proved to be guilty. 

4. ~No defaulter to any branch of our government 
anywhere in the United States can hold office, and for 
the same reasons. 



158 CONSTITUTION OF WISCONSIN. [Art. XIII. 

Section IV. — The Great Seal. 

It shall be the duty of the Legislature to provide a great seal for 
the State, which shall be kept by the Secretary of State, and all 
official acts of the Governor, his approbation of the laws excepted, 
shall be thereby authenticated. 

All appointments to office, all patents for land, all 
pardons, etc., must have not only the signature of the 
governor, but the seal of the state, because they are 
public acts, done by the governor as the executive of 
the state. His approbation of the laws is not an execu- 
tive act, but a legislative one, and, therefore, does not 
need the seal of the state. 

Section V. — Persons Residing on Indian Lands. 

All persons residing upon Indian lands within any county of the 
State, and qualified to exercise the right of suffrage under this 
Constitution, shall be entitled to vote at the polls which may be 
held nearest their residence, for State, United States or County 
officers. Provided, that no person shall vote for county officers 
out of the county in which he resides. 

The Indian lands are not organized into towns, and, 
therefore, persons living on them are not in any voting 
precinct. But it would not be fair to deprive them of a 
vote for other than town officers, as they would be if 
the rule had no exception, that every elector must vote 
in the town, village or ward where he resides. There- 
fore, such qualified electors may vote at the nearest polls 
for Presidential electors, for Congressmen and for state 
officers, and also for county officers, if they live in the 
county where they vote. 



Sec. 7.] DIVISION OF COUNTIES. 159 

Section VI. — Officers of the Legislature. 

The elective officers of the Legislature, other than the presiding 
officers shall be a chief clerk and a sergeant-at-arins, to be elected 
by each house. 

The lieutenant governor is president of the senate. 
"When he does not preside, for any reason, the senate 
elects a president from its own members. The assem- 
bly elects a speaker from its own members. The chief 
clerk and the sergeant-at-arms of each house are elected 
by each house, but are not members and have no vote. 
The other officers and attendants are appointed. The 
chief clerk appoints his own assistants and the sergeant- 
at-arms appoints the postmaster, doorkeepers and fire- 
men. The messengers are appointed by the speaker. 
The elections are all vica voce, and the votes of each 
member are entered on the journal. (IV, 30.) 

Section VII. — Division of Counties. 

No county with an area of nine hundred square miles, or less, shall 
be divided, or have any part stricken therefrom, without submit- 
ting the question to a vote of the people of the county, nor unless 
a majority of all the legal voters of the county, voting on the 
question, shall vote for the same. 

It is supposed that the area of nine hundred square 

miles, or twenty-five congressional townships, is small 

enough, in ordinary cases, for a county. But if the 

people of the county are willing to divide the county, 

there is no good reason why they should not. 

In the case of the division of Washing-ton county, and the 
formation of Ozaukee county, the supreme court decided that 
in computing the area of a county, bodies of water lying* 



160 CONSTITUTION OF WISCONSIN. [Art. XIII. 

within its boundaries are considered parts of the county, and 
that Washington county could be divided, because it then in- 
cluded a part of Lake Michigan. 

The supreme court has decided that it is competent for the 
legislature to enlarge a county which contains less than nine 
hundred square miles, by adding to it part of an adjoining 
county containing a larger area, so that each of them shall 
be large enough to be divisible, without submitting the ques- 
tion to the voters; and by a subsequent act at the same ses- 
sion, to form a new county out of territory taken from such 
adjoining counties, without submitting the question of such 
division to the voters. This was in the case of the division of 
Chippewa and Buffalo counties, and the formation of Trem- 
pealeau county, in 1864. The legislature has since then sev- 
eral times evaded this section in the same way. 

Section VIII. — Changes of County Seats. 

No county seat shall be removed until the point to which it is pro- 
posed to be removed shall be fixed by law, and a majority of the 
voters of the county, voting on the question, shall have voted in 
favor of its removal to such point. 

No special law can be passed for locating or chang- 
ing any county seat (IV, 31), but a general law has been 
passed which covers this whole subject. Before a 
county seat can be changed two things must be done. 
The point to which it is to be moved must be definitely 
fixed, and a majority of all the votes cast on that ques- 
tion must be for changing it to said definite point. 

Section IX. — Officers Elected or Appointed. 

All county officers whose election, or appointment is not provided 
for by this Constitution, shall be elected by the electors of the 
respective counties, or appointed by the boards of supervisors, or 
other county authorities, as the Legislature shall direct. All city, 
town and village officers, Avhose election or appointment, is not 



Sec. 10.] VACANCIES. 161 

provided for by this Constitution, shall be elected by the electors 
of such cities, towns and villages, or of some division thereof, or 
appointed by such authorities thereof, as the Legislature shall 
designate for that purpose. All other officers whose election or 
appointment is not provided for by this Constitution, and all 
officers whose offices may hereafter be created by law, shall be 
elected by the people, or appointed, as the Legislature may direct. 

Nearly all the officers named above are elected by the 
people. The object of this section is to forbid the prac- 
tice, usual in a few states, of having local officers ap- 
pointed by the governor or by the legislature. This ef- 
fectually secures local self-government in this state. 

Section X. — Vacancies. 

The Legislature may declare the cases in which any office shaU be 
deemed vacant, and also the manner of filling the vacancy, where 
no provision is made for that purpose in this Constitution. 

Any office is made vacant by the death or resignation 
of the person holding it, or by his removal from the 
state, or by his accepting an office from a foreign power, 
or from the United States. All civil officers can be re- 
moved by impeachment, and some officers can be also 
removed in a shorter way, as judges by address, and 
most county officers by the governor. When an officer 
is so removed his office is vacant. Vacancies are filled 
in various ways. A vacancy in the office of governor 
is filled by the lieutenant governor immediately, and if 
he also goes out of office, by the secretary of state. (V, 
7 and 8.) Vacancies in the judicial and administrative 
offices of the state are filled by appointment of the gov- 

Wis. Con.-II. 



162 CONSTITUTION OF WISCONSIN. [Art. XIV. 

ernor till the next election. Vacancies in the legisla- 
ture are filled by special election, called as soon as 
possible. Vacancies in the office of superintendent of 
schools are filled by appointment of the state superin- 
tendent. Vacancies in town offices are filled by special 
election. Vacancies in district boards are filled by ap- 
pointment by the board or by the town clerk, till the 
next regular school meeting. 



ARTICLE XIV. 

THE CHANGE FROM TERRITORY TO STATE. 

This article detailed the things necessary to be cared 
for in the change from territory to state, as can be seen 
by referring to the text. As these were temporary in 
their nature we omit all consideration of them here. 



FINIS. 



Art. I.] DECLARATION OF RIGHTS. 163 



CONSTITUTION OF THE STATE OF WISCONSIN. 

[The text of the State Constitution given below is taken from the 
original document now deposited with the secretary of state, and the 
text of each amendment is taken from the enrolled joint resolution de- 
posited with the secretary of state. In each case the exact spelling, 
punctuation and capitalization have been retained, even where, as in 
some instances, there is obviously an error, as in the omission of "States" 
from "United States."] 

PREAMBLE. 

We, the people of Wisconsin, grateful to Almighty God for our freedom; 
in order to secure its blessings, form a more perfect government, insure 
^domestic tranquility and promote the general welfare; do establish this 
Constitution. 

ARTICLE I. 

DECLARATION OF RIGHTS. 

Section 1. All men are born equally free and independent, and 
have certain inherent rights; among tnese are life, liberty, and the pur- 
suit of happiness: to secure these rights governments are instituted 
among men, deriving their just powers from the consent of the gov- 
erned. 

Section 2. There shall be neither slavery, nor involuntary servitude 
in this State, otherwise than for the punishment of crime, whereof the 
party shall have been duly convicted. 

Section 3. Every person may freely speak, write and publish his sen- 
timents on all subjects, being responsible for the abuse of that right, and 
no laws shall be passed to restrain or abridge the liberty of speech, or of 
the press. In all criminal prosecutions, or indictments for libel, the 
truth may be given in evidence, and if it shall appear to the jury, that 
the matter charged as libellous be true, and was published with good mo- 
tives and for justifiable ends, the party shall be acquitted; and the jury 
shall have the right to determine the law and the fact. 

Section 4. The right of the people peaceably to assemble, to consult 
for the common good, and to petition the government, or any depart- 
ment thereof, shall never be abridged. 

Section 5. The right of trial by jury shall remain inviolate; and shall 
extend to all cases at law, without regard to the amount in controversy; 
but a jury trial may be waived by the parties in all cases, in the manner 
prescribed by law. 

Section 6. Excessive bail shall not be required, nor shall excessive 
fines b° imposed, nor cruel and unusual punishments inflicted. 

Section 7. In all criminal prosecutions, the accused shall enjoy the 
right to be heard by himself and counsel; to demand the nature , and 
cause of the accusation against him; to meet the witnesses face to face; 
to have compulsory process to compel the attendance of witnesses in 
his behalf; and in prosecutions by indictment, or information, to a 
speedy public trial by an impartial jury of the county or district where- 
in the offence shall have been committed'; which county or district shall 
have been previously ascertained by law. 

Section 8. No person shall be held to answer for a criminal offence, 
unless on the presentment, or indictment of a Grand Jury, except in 
cases of impeachment, or in cases cognizable by Justices of the Peace, 
or arising in the Army, or Navy, or in the militia when in actual 
service in time of war." or public danger; and no person for the same 
offence shall be put twice in jeopardy of punishment, nor shall be 
compelled in any criminal case to be a witness against himself; All per- 
sons shall, before conviction, be bailable by sufficient sureties, except 
for capital offences when the proof is evident, or the pre- 



164 CONSTITUTION OF WISCONSIN. [Art. II. 

sumption great; and the privilege of the writ of habeas-corpus shall not 
be suspended unless when, in cases of rebellion, or invasion, the public 
safety may require. 

Section 9. Every person is entitled to a certain remedy in the laws, 
for all injuries, or wrongs which he may receive in his person, property, 
or character; he ought to obtain justice freely, and without being obliged 
to purchase it, completely and without denial, (promptly and without de- 
lay, conformably to the laws. 

Section 10. Treason against the State shall consist only in levying war 
against the same, or in adhering to its enemies, giving them aid and 
comfort. No person shall be convicted of treason, unless on the testi- 
mony of two witnesses to the same overt act, or on confession in open 
court. 

•Section 11. The right of the people to be secure in their persons, 
houses, papers and effects, against unreasonable^ searches and seizures 
shall not be violated; and no warrants shall issue but upon probable 
cause, supported by oath, or affirmation and particularly describing the 
place to be searched, and the persons or things to be seized. 

Section 12. No bill of attainder, ex-post facto law, nor any law impair- 
ing the obligation of contracts shall ever be passed, and no conviction 
shall work corruption of blood, or forfeiture of estate. 

/Section 13. The property of no person shall be taken for public use, 
without just compensation therefor. 

Section 14. All lands within the State are declared to be allodial, and 
feudal tenures are prohibited ; — Leases and grants of agricultural land, 
for a longer term than fifteen years, in which rent, or service of any 
kind shall be reserved, and all fines and like restraints upon alienation, 
reserved in any grant of land, hereafter made, are declared to be void. 

Section 15. No distinction shall ever be made by law, between resi- 
dent aliens and citizens, in reference to the possession, enjoyment, or 
descent of property. 

Section 16. No person shall be imprisoned for debt, arising out of, or 
founded on a contract, expressed or implied. 

Section 17. The privilege of the debtor to enjoy the necessary comforts 
of life, shall be recognized by wholesome laws, exempting a reasonable 
amount of property from seizure, or sale for the payment of any debt, or 
liability hereafter contracted. 

Section 18. The right of every man to worship Almighty God, accord- 
ing to the dictates of his own conscience, shall never be infringed; nor 
shall any man be compelled to attend, erect, or support any place of 
worship, or to maintain any ministry against his consent; nor shall any 
control of, or interference with, the rights of conscience be permitted, or 
any preference be given by law to any religious establishments, or modes 
of worship; nor shall any money be drawn from the treasury for the 
benefit of religious societies, or religious, or theological seminaries. 

Section 19. No religious test shall ever be required as a qualification 
for any office of public trust under the State, and no person shall be 
rendered incompetent to give evidence in any court of law, or equity, in 
consequence of his opinions on the subject of religion. 

Section 20. The military shall be in strict subordination to the civil 
power. 

Section 21. "Writs of error shall never be prohibited by law. 

Section 22. The blessings' of a free government can only be maintained 
by a firm adherence to justice, moderation, temperance, frugality and 
virtue, and by frequent recurrence to fundamental principles. 

ARTICLE II. 

BOUNDARIES. 

Section 1. It is hereby ordained and declared, that the State of Wis- 
consin doth consent and accept of the boundaries prescribed in the act 
of Congress entitled "An act to enable the people of Wisconsin Territory 
to form a Constitution and State government, and for the admission of 
such State into the Union," Approved August sixth, one thousand eight 



Art. II].] SUFFRAGE. 165 

hundred and forty-six, to- wit: — Beginning at tlie north-east corner of 
the State of Illinois— that is to say; at a point in the centre of Lake Mich- 
igan, where the line of forty two degrees and thirty minutes of north 
latitude crosses the same; thence running with -the boundary line of 
the State of Michigan, through Lake Michigan, Green Bay, to the mouth 
of the Menominie river; thence up the channel of the said river to the 
Brule river; thence up said last mentioned river to Lake Brul6; thence 
along the southern shore of Lake Brule in a direct line to the centre of 
the channel between Middle and South Islands, in the Lake of the Desert; 
thence in a direct line to the head waters of the Montreal river, as 
marked upon the survey made by Captain Cramm ; thence down the main 
channel of the Montreal river to the middle of Lake Superior; thence 
through the centre of Lake Superior to the mouth of the St. Louis river; 
thence up the main channel of said river to the first rapids in the same, 
above the Indian village, according to Nichollet's map; thence due south 
to the main branch of the river St. Croix; thence down the main channel 
of said river to the Mississippi; thence down the centre of the main 
channel of that river to the north-west corner of the State of Illinois; 
thence due east with the northern boundary of the State of Illinois to 
the place of beginning, as established by "an act to enable the people 
of the Illinois Territory to form a constitution and State government, 
and for the admission of such State into the Union on an equal footing 
with the original States", Approved April 18th 1818. Provided, however, 
that the following alteration of the aforesaid boundary be, and hereby 
is proposed to the Congress of the United States as the preference of 
the State of Wisconsin, and if the same shall be assented and agreed 
to by the Congress of the United States, then the same shall be and for- 
ever remain obligatory on the State of Wisconsin, viz: Leaving the afore- 
said boundary line at the foot of the rapids of the St. Louis river; 
thence in a direct line, bearing South-westerly, to the mouth of the 
Iskodewabo, or Rum river, where the same empties intoj the Miss- 
issippi river, thence down the main channel of the said Mississippi river 
as prescribed in the aforesaid boundary. 

Section 2. The propositions contained in the act of Congress are here- 
by accepted, ratified and confirmed, and shall remain irrevocable without 
the consent of the United States; and it is hereby ordained that this 
State shall never interfere with the primary disposal of the soil within 
the same by the United States, nor with any regulations Congress may 
find necessary for securing the title in such soil to bona-fide purchasers 
thereof; and no tax shall be imposed on land, the property of the United 
States; and in no case shall non-resident proprietors be taxed higher than 
residents. Provided, that nothing in this Constitution, or in the Act of 
Congress aforesaid, shall in any manner prejudice, or affect the right of 
the State of Wisconsin to five hundred thousand acres of land, granted 
to said State, and to be her^ifter selected and located by and under the 
Act of Congress entitled "An act to appropriate the proceeds of the sales 
of the public lands, and grant pre-emption rights," Approved Septem- 
ber fourth, one thousand eight hundred and forty-one. 

ARTICLE III. 

SUFFRAGE. 

Section 1. Evert male person of the age of twenty-one years or up- 
wards, belonging to either of the following classes, who shall have re- 
Bided in the State for one year next preceding any election, shall be 
deemed a qualified elector at such election: 

First.— White citizens of the United States. 

Second.— White persons of foreign birth who shall have declared their 
intention to become citizens, conformably to the laws of the United States 
on the subject of naturalization. 

Third.— Persons of Indian blood who have once been declared by law of 
Congress to be citizens of the United States, any subsequent laws of 
Congress to the contrary notwithstanding. 

Fourth.— Civilized persons of Indian descent, not members of any tribe: 



166 CONSTITUTION OF WISCONSIN. [Art. IV. 

Provided, that the legislature may at any time extend, by law, the right 
of suffrage to persons not herein enumerated, but no such law shall be 
in force until the same shall have been submitted to a vote of the peo- 
ple at a general election, and approved by a majority of all the votes 
cast at such election. 

Section 2. No person under guardianship, non-compos mentis, or 
insane, shall be qualified to vote at any election; nor shall any person 
convicted of treason, or felony, be qualified to vote at any election, un- 
less restored to civil rights. 

Section 3. All votes shall be given by ballot, except for such town- 
ship officers as may by law be directed, or allowed to be otherwise 
chosen. 

Section 4. No person shall be deemed to have lost his residence in 
this State, by reason of his absence on business of the United States, 
or of this State. 

Section 5. No soldier, seaman, or marine in the Army or Navy of 
the United States shall be deemed a resident of this State, in conse- 
quence of being stationed within the same. 

Section 6. Laws may be passed excluding from the right of suffrage 
all persons who have been or may be convicted of bribery, or larceny, or 
of any infamous crime, and depriving every person who shall make, or 
become directly, or indirectly interested, in any bet or wager depending 
upon the result of any election, from the right to vote at such election. 



ARTICLE IV. 

LEGISLATIVE. 

Section 1. The legislative power shall be vested in a Senate and 
Assembly. 

Section 2. The number of the members of the Assembly shall never 
be less than fifty-four, nor more than one hundred. The Senate shall 
consist of a number not more than one-third, nor less than one-fourth 
of the number of the members of the Assembly. 

Section 3. The Legislature shall provide by law for an enumeration 
of the inhabitants of the State in the year one thousand eight hundred 
and fifty five, and at the end of every ten years thereafter; and at their 
first session after such enumeration, and also after each enumeration 
made by the authority of the United States, the legislature shall ap- 
portion and district anew the members of the Senate and Assembly, 
according to the number of inhabitants, excluding Indians not taxed, 
and soldiers and officers of the United States Army and Navy. 

Section 4. The members of the Assembly shall be chosen annually by 
single districts, on the Tuesday succeeding the first Monday of Novem- 
ber, by the qualified electors of the several districts. Such districts to 
be bounded by county, precinct, town', or ward lines, to consist of con- 
tiguous territory, and be in as compact form as practicable. 

Section 5. The Senators shall be chosen by single districts of con- 
venient contiguous territory, at the same time and in the same manner 
as members of the Assembly are required to be chosen, and no Assem- 
bly district shall be divided in the formation of a Senate district. The 
Senate districts shall be numbered in regular series, and the Senators 
chosen by the odd-numbered districts shall go out of office at the ex- 
piration of the first year, and the Senators chosen by the even-numbered 
districts shall go out of office at the expiration of the second year, and 
thereafter the Senators shall be chosen for the term of two years. 

Section 6. No person shall be eligible to the Legislature, who shall not 
have resided one year within the State, and be a qualified elector in the 
district which he may be chosen to represent. 

Section 7. Each house shall be the judge of the elections, returns 
and qualifications of its own members; and a majority of each shall con- 
stitute a quorum to do business : but a smaller number may adjourn from 
day to day, and may compel the attendance of absent members in such 
manner, and under such penalties, as each house may provide. 



Art. IV.] LEGISLATIVE. 167 

Section 8. Each house may determine the rules of its own proceed- 
ings, punish for contempt and disorderly behaviour, and with the con- 
currence of two-thirds of all the members elected, expel a member; 
but no member shall be expelled a second time for the same cause. 

iSection 9. Each house shall choose its own officers, and the Senate 
shall choose a temporary president, when the Lieutenant-Governor shall 
not attend as president, or shall act as Governor. 

Section 10, Each house shall keep a journal of its proceedings and 
publish the same, except such parts as require secrecy. The doors of 
each house shall be kept open except when the public welfare shall re- 
quire secrecy. Neither house shall, without consent of the other, adr 
journ for more than three days. 

Section 11. The Legislature shall meet at the seat of government, at 
such time as shall be provided by law, once in each year, and not 
oftener, unless convened by the Governor. 

Section 12. No member of the Legislature shall, during the term for 
which he was- elected, be appointed or elected to any civil office in the 
State, which shall have been created, or the emoluments of which shall 
have been increased, during the term for which he was elected. 

Section 13. No person being a member of Congress, or holding any 
military or civil office under the United States, shall be eligible to a 
seat in the Legislature, and if any person shall, after his election as a 
member of the Legislature, be elected to Congress, or be appointed to 
any office, civil or military, under the government of the United States, 
his acceptance thereof shall vacate his seat. 

Section 14. The Governor shall issue writs of election to fill such 
vacancies as may occur in either house of the Legislature. 

Section 15. Members of the Legislature shall in all cases, except trea- 
son, felony and breach of the peace, be privileged from arrest; nor 
shall they be subject to any civil process, during the session of the Leg- 
islature, nor for fifteen days next before the commencement and after 
the termination of each session. 

Section 16. No member of the Legislature shall be liable in any civil 
action, or criminal prosecution whatever, for words spoken in debate. 

Section 17. The style of the laws of the State shall be "The people 
of the State of Wisconsin, represented in Senate and Assembly, do enact 
as follows:" and no law shall be enacted except by bill. 

Section 18. No private or local bill which may be passed by the 
Legislature shall embrace more than one subject, and that shall be ex- 
pressed in the title. 

Section 19. Any bill may originate in either house of the Legislature, 
and a bill passed by one house may be amended by the other. 

Section 20. The yeas and nays of the members of either house, on 
any question shall, at the request of one-sixth of those present, be en- 
tered on the journal. 

Section 21. Each member of the Legislature shall receive for his ser- 
vices two dollars and fifty cents for each days attendance during the 
session, and ten cents for every mile he shall travel in going to and re- 
turning from the place of the meeting of the Legislature, on the most 
usual route. 

Section 22. The Legislature may confer upon the boards of super- 
visors of the several counties of the State, such powers of a local, legis- 
lative and administrative character, as they shall from time to time pre- 
scribe. 

Section 23. The Legislature shall establish but one system of town 
and county government, which shall be as nearly uniform as practicable. 

Section 24. The Legislature shall never authorize any lottery, or 
grant any divorce. 

Section 25. The Legislature shall provide by law, that all stationary 
required for the use of the State, and all printing authorized and re- 
quired by them to be done for their use, or for the State, shall be let 
by contract to the lowest bidder, but the Legislature may establish a 
maximum 1 price: no member of the Legislature, or other State Officer 
shall be interested, either directly or indirectly, in any such contract. 

Section 26. The Legislature shall never grant any extra compensation 



168 CONSTITUTION OF WISCONSIN. [Art. V. 

to any public officer, agent, servant, or contractor, after the services 
shal'l have been rendered, or the contract entered into; nor shall the 
compensation of any public officer be increased, or diminished during his 
term of office. 

Section 27. The Legislature shall direct by law in what manner and 
in what courts, suits may be brought against the State. 

Section 28. Members of the Legislature, and all officers, executive 
and judicial, except such inferior officers as may be by law exempted, 
shall before they enter upon the duties of their respective offices, take 
and subscribe an oath, .or affirmation to support the Constitution of the 
United States, and the Constitution of the State of Wisconsin, and 
faithfully to discharge the duties of their respective offices to the best 
of their ability. 

Section 29. The Legislature shall determine what persons shall con- 
stitute the militia of the State, and may provide for organizing and dis- 
ciplining the same in such manner as shall be prescribed by law. 

Section 30. In all elections to be made by the Legislature, the mem- 
bers thereof shall vote viva-voce, and their votes shall be entered on the 
journal. 

ARTICLE V. 

EXECUTIVE. 

Section 1. The Executive power shall be vested in a Governor, who 
shall hold his office for two years; a Lieutenant-Governor shall be elected 
at the same time, and for the same term. 

Section 2. No person except a citizen of the United States, and a 
qualified elector of the State, shall be eligible to the office of Governor, 
or Lieutenant-Governor. 

Section 3. The Governor and Lieutenant-Governor shall be elected by 
the qualified electors of the State, at the times and places of choosing 
members of the Legislature. The persons respectively having the highest 
number of votes for Governor and Lieutenant-Governor, shall be elected; 
but in case two or more shall have an equal and the highest number 
of votes for Governor, or Lieutenant-Governor, the two houses 
of the Legislature, at its next annual session, shall forthwith, by joint 
ballot, choose one of the persons so having an equal and the highest 
number of votes, for Governor, or Lieutenant-Governor. The returns 
of election for Governor and Lieutenant-Governor, shall be made in such 
manner as shall be provided by law. 

Section 4. The Governor shall be Commander-in-chief of the Mil- 
itary and Naval forces of the State. He shall have power to convene the 
Legislature on extraordinary occasions, and in case of invasion, or danger 
from the prevalence of contagious disease at the seat of government, he 
may convene them at any other suitable place within the State. He 
shall commumnicate to the Legislature, at every session, the condi- 
tion of the State; and recommend such matters to them for their consid- 
eration as he may deem expedient. He shall transact all necessary bus- 
iness with the officers of the government, civil and military. He shall 
expedite all such measures as may be resolved upon by the Legislature, 
and shall take care that the laws be faithfulily executed. 

Section 5. The Governor shall receive during his continuance in 
office, an annual compensation of one thousand two hundred and fifty 
dollars. 

Section 6. The Governor shall have power to grant reprieves, com- 
mutations and pardons after conviction, for aHl offences, except treason 
and cases of Impeachment, upon such conditions and with such restric- 
tions and limitations as he may think proper, subject to such regula- 
tions as may be provided by law relative to the manner of applying for 
pardons. Upon conviction for treason, he shall Save the power to sus- 
pend the execution of the sentence, until the case shall be reported to 
the Legislature at its next meeting, when the Legislature shall either 
pardon, or commute the sentence, direct the execution of the sentence, 
or grant a further reprieve. He shall annually communicate to the Leg- 



Art. VI. J ADMINISTRATIVE. 169> 

islature each case of reprieve, commutation or pardon granted, stating 
the name of the convict, the crime of which he was convicted, the sen- 
tence and its date, and the date of the commutation, pardon or reprieve, 
with his reasons for granting the same. 

Section 7. In case of the impeachment of the Governor, or his re- 
moval from office, death, inability from mental or physical disease, res- 
ignation, or absence from the State, the powers and duties of the office 
shall devolve upon the Lieutenant-Governor for the residue of the term, 
or until the Governor, absent or impeached, shall have returned, or the 
disability shall cease. But when the Governor shall, with the consent of" 
the Legislature, be out of the State in time of War, at the head of the 
Military force thereof, he shall continue Commander-in-chief of the Mil- 
itary force of the State. 

Section 8. The Lieutenant Governor shall be President of the Senate, 
but shall have only a casting vote therein. If, during a vacancy in the- 
office of Governor, the Lieutenant-Governor shall be impeached, dis- 
placed, resign, die, or from mental, or physical disease become in- 
capable of performing the duties of his office, or be absent from the 
State, the Secretary of State shall act as Governor, until the vacancy 
shall be filled, or the disability shall cease. 

Section 9. The Lieutenant-Governor shall receive double the per- 
diem allowance of members of the Senate, for every day's attendance as- 
President of the Senate, and the same mileage as shall be allowed to 
members of the Legislature. 

Section 10. Every bill which shall have passed the Legislature shall, 
before it becomes a law, be presented to the Governor; if he approve, 
he shall sign it, but if not, he shall return it, with his .objections, to 
that house in which it shall have originated, who shall enter the objec- 
tions at large upon the journal, and proceed to reconsider it. If, after 
such reconsideration two-thirds 1 of the members present shall agree to 
pass the bill, lit shall be sent, together with the objections, to the other 
house, by which it shall likewise be reconsidered, and if approved by two- 
thirds of the members present, it shall become a law. But in all such 
cases the votes of both houses shall be determined by yeas and nays, an<? 
the names of the members voting for or against the bill, shall be entered 
on the journal of each house respectively. If any bill shall not be re- 
turned by the Governor within three days (Sundays excepted) after it 
shall have been presented to him, the same shall be a law, unless the 
Legislature shall, by their adjournment, prevent its return, in which- 
case it shall not be a law. 

ARTICLE VI. 

administeative. 

Section 1. There shall 1 be chosen by the qualified electors of the- 
State, at the times and places of choosing the members of the Legis- 
lature, a Secretary of State, Treasurer and Attorney General, who shall 
severally hold their offices for the term of two years. 

Section 2. The Secretary of State shall keep a fair record of the 
official acts of the Legislature and Executive department of the State, 
and shall, when required, lay the same and all matters relative thereto, 
before either branch of the Legislature. He shall be ex-officio Auditor 
and shall perform such other duties as shall be assigned him by law. 
He shall receive as a compensation for his services yearly, such sum as 
shall be provided by law, and shall keep his office at the seat of gov- 
ernment. 

Section 3. The powers, duties and compensation of the Treasurer and 
Attorney General shall be prescribed by law. 

Section 4. Sheriffs, Coroners, Registers of Deeds and District At- 
torneys shall be chosen by the electors of the respective counties, once 
in every two years, and as often as vacancies shall happen; Sheriffs 
shall hold no other office, and be ineligible for two years next succeeding 
the termination of their offices. They may be required by law, to renew 



170 CONSTITUTION OF WISCONSIN. [Art. VII. 

their security from time to time; and in default of giving such new 
security, their offices shall be deemed vacant. But the county shall 
never be made responsible for the acts of the Sheriff. The Governor 
may remove any officer in this section mentioned, giving to such of- 
ficer a copy of the charges against him, and an opportunity of being 
heard in his defence. 

ARTICLE VII. 

JUDICIARY. 

Section 1. The court for the trial of impeachments shall be composed 
of the Senate. The House of Representatives shall have the power of 
impeaching all civil officers of this State, for corrupt conduct in office, 
or for crimes and misdemeanors; but a majority of all the members 
elected shall concur, in an impeachment. On the trial of an impeach- 
ment against the Governor, the Lieutenant-Governor shall not act as a 
member of the court. No judicial officer shall exercise his office, after 
he shall have been impeached, until his acquittal. Before the trial of an 
impeachment, the members of the court shall take an oath or affirma- 
tion, truly and impartially to try the impeachment according to evi- 
dence; and no person shall be convicted without the concurrence of two- 
thirds of the members present. Judgment in cases of impeachment 
shall not extend further than to removal from office, or removal 
from office and disqualification to hold any office of honor, profit or trust 
under the State; but the party impeached shall be liable to indictment, 
trial and punishment according to law. 

Section 2. The judicial power of this State, both as to matters of 
law and equity, shall be vested in a Supreme court, Circuit courts, 
Courts of Probate, and in Justices of t^e Peace. The Legislature may 
also vest such jurisdiction as shall be deemed necessary in municipal 
courts, and shall have power to establish inferior courts in the sev- 
eral counties, with limited civil and criminal jurisdiction. Provided, 
that the jurisdiction which may be vested in municipal courts, shall not 
■exceed, in their respective municipalities, that of circuit courts, in their 
respective circuits, as prescribed in this Constitution: And that the 
Legislature shall provide as well for the election of Judges of the Mu- 
nicipal courts, as of the Judges of inferior courts, by the qualified 
electors of the respective jurisdictions. The term of office of the judges 
of the said Municipal and inferior courts shall not be longer than that 
of the Judges of the circuit court.. 

Section 3. The Supreme court, except in cases otherwise provided in 
this Constitution, shall have appellate jurisdiction only, which shall be 
co-extensive with the State; but in no case removed to the Supreme 
Court shall a trial by jury be allowed. The Supreme Court shall have 
a general superintending control over all inferior courts; it shall have 
power to issue writs of habeas-corpus, mandamus, injunction, quo 
warranto, certiorari; and other original and remedial writs, and to hear 
and determine the same. 

Section 4. For the term of five years, and thereafter until the 
Legislature shall otherwise provide, the judges of the several circuit 
courts, shall be judges of the Supreme court, four of whom shall con- 
stitute a quorum, and the concurrence of a majority of the judges pres- 
ent shall be necessary to a decision. The Legislature shall have power, 
if they should think it expedient and necessary, to provide by law, for 
the organization of a separate Supreme court, with the jurisdiction and 
powers prescribed in this Constitution, to consist of one chief justice, 
and two associate justices, to be elected by the qualified electors of 
the State, at such time and in such manner as the Legislature may 
provide. The separate Supreme court when so organized, shall not be 
changed or discontinued by the Legislature; the judges thereof shall 
oe so classified that but one of them shall go out of office at the same 
time; and their term of office shall be the same as is provided for the 
judges of the circuit court. And whenever the Legislature may con- 



Art. VII.] JUDICIARY. 171 

sider it necessary to establish a separate Supreme court, they shall have 
power to reduce the number of circuit court judges to four, and sub- 
divide the judicial circuits, but no such subdivision or reduction shall 
take effect until after the expiration of the term of some one of said 
judges, or till a vacancy occur by some other means. 

Section 5. The State shall be divided into five judicial circuits, to 
be composed as follows: The first circuit shall comprise the counties 
of Racine, Walworth, Rock and Green; the second circuit, the counties 
of Milwaukee, Waukesha, Jefferson and Dane; the third circuit, the 
counties of Washington, Dodge, Columbia, Marquette, Sauk and Portage; 
the fourth circuit, the counties of Brown, Manitowoc, Sheboygan, Fond 
du Lac, Winnebago and Calumet; and the fifth circuit shall comprise the 
counties of Iowa, La Fayette, Grant, Crawford and St. Croix; and the 
county of Richland shall be attached to Iowa, the county of Chippewa 
to the county of Crawford, and the county of La Pointe to the county 
of St. Croix for judicial purposes until otherwise provided by the Leg- 
islature. 

Section 6. The Legislature may alter the limits, or increase the 
number of circuits, making them as compact and convenient as prac- 
ticable, and bounding them by county lines; but no such alteration or in- 
crease shall have the effect to remove a judge from office. In case of 
an increase of circuits, the judge or judges shall be elected as provided 
in this Constitution and receive a salary not less than that herein pro- 
vided for the judges of the circuit court. 

Section 7. For each circuit there shall be a judge chosen by the qual- 
ified electors therein, who shall hold his office as is provided in this Con- 
stitution, and until his successor shall be chosen and qualified; and after 
he shall have been elected, he shall reside in the circuit for which he 
was elected. One of said judges shall be designated as chief justice in 
such manner as the Legislature shall provide. And the Legislature shall 
at its first session provide by law as well for the election of, as for class- 
ifying the judges of the circuit court to be elected under this Con- 
stitution, in such manner that one of said judges shall go out of office 
in two years, one in three years, one in four years, one in five years 
and one in six years, and thereafter the judge elected to fill the office 
shall hold the same for six years. 

Section 8. The circuit courts shall have original jurisdiction in all 
matters civil and criminal within this State, not excepted in this Con- 
stitution, and not hereafter prohibited by law; and appellate jurisdic- 
tion from all inferior courts and tribunals, and a supervisory control 
over the same. They shall also have the power to issue writs of habeas 
corpus, mandamus, injunction, quo warranto, certiorari, and all other 
writs necessary to carry into effect their orders, judgments and decrees,- 
and give them a general control over inferior courts and jurisdictions. 

Section 9. When a vacancy shall happen in the office of judge of 
the Supreme or circuit courts, such vacancy shall be filled by an ap- 
pointment of the Governor, which shall continue until a^successor is 
elected and qualified; and when elected such successor shall hold his 
office the residue of the unexpired term. There shall be no election for 
a judge or judges at any general election for State or county officers, 
nor within thirty days either before, or after such election. 

Section 10. 'Each of the judges of the Supreme and circuit courts 
shall receive a salary, payable quarterly, of not less than one thous- 
and five hundred dollars annually; they shall receive no fees of office, 
or other compensation than their salaries; they shall hold no office of 
public trust, except a judicial office, during the term for which they are 
respectively elected, and all votes for either of them for any office, ex- 
cept a judicial office, given by the Legislature or the people, shall be 
void. No person shall be eligible to the office of judge, who shall not, 
at the time of his election, be a citizen of the United States, and have 
attained the age of twenty-five years, and be a qualified elector within 
the jurisdiction for which he may be chosen. 

Section 11. The Supreme court shall hold at least one term, annually, 
at the seat of government of the State, at such time as shall be pro- 
vided by law. And the Legislature may provide for holding other 
terms, and at other places when they may deem it necessary. A Cir- 



172 CONSTITUTION OF WISCONSIN. [Art. V IL 

cuit Court shall be held, at least twice in each year, in each county of 
this State organized for judicial purposes. The judges of tne circuit 
court may hold courts for each other, and shall do so when required by 
law. 

Section 12. There shall be a clerk of the circuit court chosen in each 
county organized for judicial purposes, by the qualified electors thereof, 
who shall hold his office for two years, subject to removal, as shall be 
provided by law. In case of a vacancy, the judge of the circuit court 
shall have the power to appoint a clerk until the vacancy shall be filled 
by an election. The clerk thus elected or appointed shall give such 
security as the Legislature may require; and when elected shall hold 
his office for a full term. The Supreme court shall appoint its own 
clerk, and the clerk of a circuit court may be appointed clerk of the Su- 
preme court. 

Section 13. Any judge of the Supreme or circuit court may be re- 
moved from office, by address of both houses of the Legislature, if two- 
thirds of all the members elected to each house concur therein, but no 
removal shall be made by virtue of this section, unless the judge com- 
plained of shall have been served with a copy of the charges against 
him, as the ground of address, and shall have had an opportunity of be- 
ing heard in his defence. On the question of removal, the ayes and 
noes shall be entered on the journals. 

Section 14. There shall be chosen in each county, by the qualified 
electors thereof, a Judge of Probate, who shall hold his office for two 
years, and until his successor shall be elected and qualified, and whose 
jurisdiction, powers and duties shall be prescribed by law. Provided, 
however, that the Legislature shall have power to abolish the office of 
Judge of Probate in any county, and to confer Probate powers upon 
such inferior courts as may be established in said county. 

Section 15. The electors of the several towns, at their annual town 
meeting, and the electors of cities and villages, at their charter elec- 
tions, shall in such manner as the Legislature may direct, elect justices 
of the peace, whose term of office shall be for two years, and until their 
successors in office shall be elected and qualified. In case of an election 
to fill a vacancy, occurring before the expiration of a full term, the jus- 
tice elected shall hold for the residue of the unexpired term. Their 
number and classification shall be regulated by law. And the" tenure of 
two years shall in no wise interfere with the classification in the first 
instance. The justices, thus elected, shall have such civil and criminal 
jurisdiction as shall be prescribed by law. 

Section 1.6. The Legislature shall pass laws for the regulation of tri- 
bunals of conciliation, defining their powers and duties. Such tribunals 
may be established in and for any township, and shall have power to 
render judgment to be obligatory on the parties, when they shall vol- 
untarily submit their matter in difference to arbitration, and agree to 
abide the judgment, or assent thereto in writing. 

Section IT. The style of all writs and process shall be, "The State 
of Wisconsin"; all criminal prosecutions shall be carried on in the name 
and by the authority of the same; and all indictments shall conclude 
against the peace and dignity of the State. 

Section 18. The Legislature shall impose a tax on all civil suits com- 
menced, or prosecuted in the municipal, inferior, or circuit courts, which 
shall constitute a fund to be applied toward the payment of the salary 
of judges. 

Section 19. The testimony in causes in equity shall be taken in like 
manner as in cases at law, and the office of master in chancery is here- 
by prohibited. 

Section 20. Any suitor, in any court of this State, shall have the 
right to prosecute or defend his suit either in his own proper person, 
or by an Attorney or agent of his choice. 

Section 21. The Legislature shall provide by law for the speedy pub- 
lication of all statute laws, and of such judicial decisions, made within 
the State, as may be deemed expedient. And no general law shall be 
in force until published. 

Section 22. The Legislature at its first session, after the adoption 
of this Constitution, shall provide for the appointment of three commis- 



Art. VIII.] FINANCE. 173 

sioners, whose duty it shall be to inquire into, revise, and simplify the 
rules of practice, pleadings, forms and proceedings, and arrange a sys- 
tem, adapted to the courts of record of this State, and report the same 
to the Legislature, subject to their modification and adoption; and such 
commission shall terminate upon the rendering of the report, unless 
otherwise provided by law. 

Section 23. The Legislature may provide for the appointment of one 
or more persons in each organized county, and may vest in such per- 
sons such judicial powers as shall be prescribed by law. Provided, that 
said power shall not exceed that of a judge of a circuit court at cham- 
bers. 

ARTICLE VIII. 



Section 1. The rule of taxation shall be uniform, and taxes shall 
be levied upon such property as the Legislature shall prescribe. 

Section 2. No money shall be paid out of the treasury, except in 
pursuance of an appropriation by law. 

Section 3. The credit of the State shall never be given, or loaned, 
in aid of any individual, association, or corporation. 

Section 4. The State shall never contract any public debt, except in 
the cases and manner herein provided. 

Section 5. The Legislature sball provide for an annual tax sufficient 
to defray the estimated expenses of the State for each year; and when- 
ever the expenses of any year shall exceed the income, the Legis- 
lature shall provide for levying a tax for the ensuing year, sufficient, 
with other sources of income, to pay the deficiency as well as the esti- 
mated expenses of such ensuing year. 

Section 6. For the purpose of defraying extraordinary expenditures, 
the State may contract public debts, (but such debts shall never in the 
aggregate exceed one hundred thousand dollars.) Every such debt shall 
be authorized by law, for some purpose or purposes to be distinctly 
specified therein; and the vote of a majority of all the members elected 
to each house, to be taken by yeas and nays, shall be necessary to the 
passage of such law: and every such law shall provide for levying an 
annual tax sufficient to pay the annual interest of such debt, and the 
principal within five years from the passage of such law, and shall 
specially appropriate the proceeds of such taxes to the payment of such 
principal and interest; and such appropriation shall not be repealed, nor 
the taxes be postponed, or diminished, until the principal and interest of 
such debt shall have been wholly paid. 

Section 7. The Legislature may also borrow money to repel invasion, 
suppress insurrection, or defend the State in time of war: but the 
monev thus raised shall be applied exclusively to the object for which 
the loan was authorized, or to the re-payment of the debt thereby 
created. 

Section 8. On the passage in either house of the Legislature, of any 
law which imposes, continues or renews a tax. or creates a debt, or 
charge, or makes, continues, or renews an appropriation of public, or 
trust monev. or releases, discharges, or commutes a claim, or demand of 
the State, the question shall be taken by yeas and nays, which shall be 
duly entered on the journal: and three-fifths of all the members elected 
to such house shall, in all such cases be required to constitute a quorum 
therein. 

Section 9. No scrip, certificate, or other evidence of State debt, 
whatsoever, shall be issued, except for such debts as are authorized 
bv the sixth and seventh sections of this Article. 

'Section 10. The State shall never contract any debt for works of In- 
ternal Improvement, or be a party in carrying on such works, but when- 
ever grants of land or other property shall have been made to the State. 
especially dedicated by the grant to particular works of Internal Im- 
provement, the State mav carry on such particular works, and shall 
devote thereto the avails of such grants, and may pledge or appropriate 
the revenues derived from such works in aid of their completion. 



174 CONSTITUTION OF WISCONSIN. [Art. X. 

ARTICLE IX. 

EMINENT DOMAIN AND PROPERTY OF THE STATE. 

Section 1. The State shall have concurrent -jurisdiction on all rivers 
and lakes bordering on this State, so far as such rivers, or lakes shall 
form a common boundary to the State, and any other State, or Terri- 
tory, now or hereafter to be formed, and bounded bv the same: And 
the river Mississippi and the navigable waters leading into the Mississ- 
ippi and St. Lawrence, and the carryins: places between the same shall 
be common highways and forever free, as well to the inhabitants of 
the State, as to the citizens of the United States, without anv tax. im- 
post or duty therefor. 

Section 2. The title to all lands and other propertv which have ac- 
crued to the Territory of Wisconsin by crant, sift, purchase, forfeiture, 
escheat, or otherwise, shall vest in the State of Wisconsin. 

Section S. The people of the State, in their right of sovereignty, are 
declared to possess the ultimate property, in and to all lands within the 
jurisdiction of the State: and all lands the title to which shall fail from 
a defect of heirs, shall revert or escheat to the people. 

ARTICLE X. 

EOT/CATION. 

Section 1. The supervision of public instruction shall be vested in 
a State Superintendent, and such other officers as the Legislature shall 
direct. The State Superintendent shall be chosen by the qualified elec- 
tors of the State, in such manner as the Legislature shall provide: his 
powers. duties and compensation shall be prescribed by law. Provided, 
that his compensation shall not exceed the sum of twelve hundred dol- 
lars annually. 

Section 2. The proceeds of all lands, that have been or hereafter may 
be granted by the United States to this State for educational purposes 
except the lands heretofore granted for the purposes of a University) and 
all moneys, and the clear proceeds of all property that may accrue to 
the State by forfeiture or escheat, and all moneys which may be paid 
as an equivalent for exemption from military duty: and the clear pro- 
ceeds of all fines collected in the several counties for any breach of the 
penal laws, and all moneys arising from any grant to the State where 
the purposes of such grant are not specified, and the five hundred thous- 
and acres of land, to which the State is entitled by the provisions of an 
act of Congress entitled "An act to appropriate the proceeds of the sales 
of the public lands, and to grant pre-emption rights." approved the 
fourth day of September, one thousand eight hundred and forty-one: 
and also the five per-centum of the nett proceeds of the public lands to 
which the State shall become entitled on her admission into the Union 
i if Congress shall consent to such appropriation of the two grants last 
mentioned) shall be set apart as a separate fund, to be called "The 
School Fund." the interest of which and all other revenues derived from 
the school lands, shall be exclusively applied to the following objects, 
to wit: 

First. To the support and maintenance of common schools, in each 
school district, and the purchase of suitable libraries and apparatus 
therefor. 

Second. The residue shall be appropriated to the support and main- 
tenance of Academies and Normal Schools, and suitable libraries and 
apparatus therefor. 

Section 3. The Legislature shall provide by law for the establishment 
of District Schools, which shall be as nearly uniform as practicable; and 
such schools shall be free and without charge for tuition, to all chil- 
dren between the ages of four and twenty years; and no sectarian in- 
struction shall be allowed therein. 

Section 4. Each town and city shall be required to raise, by tax, 
annuallv, for the support of common schools therein, a stim not less 



Art. XI.] CORPORATIONS. 175 

than one half the amount received by such town or city respectively for 
from the income of the school fund. 

Section 5. P. ie by law, for the distribution of 

the income of the school fund anion? the .several towns and cities of the 
State, for the support of commoi -.herein, in some just propor- 

tion to the number of children and youth resident therein, between the 
ages of four and twenty years, and no appropriation shall be made 
from the school fund to any city, or town, for the year in which said 
city or town shall fail to raise such tax; nor to t vol district for 

the year in which a school shaH not he maintained at least three months. 

Section ft. Pi ill be made by law for the establishment of a 

>f State gt . and for c o i 

necting with the same, from time to tin. a different 

parts of the State, as the interests of education may 
ceeds of all lands that have been, or may hereafter be granted by the 
United States to the State for the support of a Unive all be and 

remain a perpetual fund, to be called "The University Fund," the in- 
rt of which shall be appropriated to the support of - Uni- 

versity, and no sectarian instruction shall be allowed in such University. 

Section 7. The .Secretary of State, T. ■ leraL 

shall constitute a board of con.. and 

■ lands, and for the investment of the fond . erefrom. 

Any two of said cor. shall be a quorum : tion 

of all business pertaining to the duties of their .. 

HON \. P. ^all be made by law for tn lool 

and University lands, after they shall have been a;. and when 

any portion of such lands shall be sold and th< -nail 

not be paid at the time of the sale, the commiv irity 

by inor^a^e upon the land sold for the sum remaining unpaid, with 
seven per cent inte: n, payable annually at the office of the 

Treasurer. The con. -hall be a; execute a good and 

sufficient conveyance to all purcha- b lands, an -arge 

any mortgages taken as security, when the sum dne -hall have 

been paid. The con. shall have power to withold from sale 

any portion of such lands, when they shall deem it expedient, and shall 
• s arising from the sale of such lands, as well as all 
other University and School funds, in such manner as the Legislature 
shall provide, and shall give such security for the faithful performance 
of their duties as may be required by 

ARTICLE XL 
coepoeat: 

Section L Corporations without banking powers or privileges may be 
formed under general laws, but shall not be act. 

except for municipal purposes, and in cases where in the judgment of 
the Legislature, the objects of the corporation cannot be attained under 
general laws. All general law- acts, enacted under the pro- 

ns of this section, may be altered or repealed by the 
any time after their pass . 

Section 2. No municipal corporation shall take pr: 
public use. against the consent of the owner, without the necessity 
thereof being ft shed by th- f a jury. 

Sectiox 3. It shall be the duty of the Legislature, and they are here- 
by empowered, to provide for the organization _i incorporated 
villages, and to restrict their power of taxat: -:. t. borrowing 
money, contracting debts and loaning their as to pr~ 
abu- ata and taxation, and in contrt - - by such 
municipal corporat: 

Section 4. The Legislature shall not have power to create, authorize 
or incorporate, by any genera rial law. any bank, or banking 

power or privilege, or any institution or corporation having any 
ing power or privilege whatever, except as provided in thisarticle. 

Section 5. The Legislature may submit to the voters, at any general 
election, the question of "bane/' or "ho baxk," and if at any such elec- 



176 CONSTITUTION OF WISCONSIN. [Art. XIII. 

tion a number of votes equal to a majority of all the votes cast at such 
election on that subject shall be in favor of Banks, then the Legislature 
•shall have power to grant Bank charters, or to pass a general banking 
law, with such restrictions and under such regulations as they may 
deem expedient and proper for the security of the bill holders. Pro- 
vided, that no such grant or law shall have any force or effect until the 
•same shall have been submitted to a vote of the electors of the State, 
at some general election, and been approved by a majority of the votes 
cast on that subject at such election. 



ARTICLE XII. 

AMENDMENTS. 

Section 1. Any amendment, or amendments to this Constitution may 
"be proposed in either house of the Legislature, and if the same shall 
be agreed to by a majority of the members elected to each of the two 
houses, such proposed amendment, or amendments, shall be entered on 
their journals, with the yeas and nays taken thereon, and referred to the 
Legislature to be chosen at the next general election; and shall be pub- 
lished for three months previous to the time of holding such election, 
and if, in the Legislature so next chosen, such proposed amendment, or 
amendments, shall be agreed to by a majority of all the members elected 
to each house, then it shall be the duty of the Legislature to sub- 
mit such proposed amendment, or amendments, to the people in such 
manner, and at such time, as the Legislature shall prescribe; and if 
the people shall approve and ratify such amendment, or amendments by 
a majority of the electors voting thereon, such amendment, or amend- 
ments, shall become part of the Constitution; provided, that if more 
than one amendment be submitted, they shall be submitted in such man- 
ner that the people may vote for or against such amendments sep- 
arately. 

Section 2. If at any time a majority of the Senate and Assembly 
shall deem it necessary to call a convention to revise or change this 
Constitution, they shall recommend to the electors to vote for or against 
a convention at the next election for members of the Legislature. And 
if it shall appear that a majority of the electors voting thereon, have 
voted for a convention, the Legislature shall, at its next session, provide 
for calling such convention. 



ARTICLE XIII. 

MISCELLANEOUS PROVISIONS. 

Section 1. The political year for the State of Wisconsin shall com- 
mence on the first Monday in January in each year, and the general 
election shall be holden on the Tuesday succeeding the first Monday in 
November in each year. 

Section 2. Any inhabitant of this State who may hereafter be en- 
gaged, either directly or indirectly in a duel, either as principal or ac- 
cessory, shall forever be disqualified as an elector, and from holding any 
office under the Constitution and laws of this State, and may be 
punished in such other manner as shall be prescribed by law. 

Section 3, No member of Congress, nor any person holding any office 
of profit or trust under the United States (Postmasters excepted) or un- 
der any foreign power; no person convicted of any infamous crime in 
any court within the United States; and no person being a defaulter to 
the United States, or to this State, or to any county, or town therein, 
or to any State, or Territory within the United States, shall be eligible 
to any office of trust, profit, or honor in this State. 

Section 4. It shall be the duty of the Legislature to provide a great 
seal for the State, which shall be kept by the Secretary of State, and 
all official acts of the Governor, his approbation of the laws excepted, 
shall be thereby authenticated. 



Art. XIV.] schedule. 177 

Section 5. All persons residing upon Indian lands, within any county 
of the State, and qualified to exercise the right of suffrage under this 
Constitution, shall be entitled to vote at the polls which may be held 
nearest their residence, for State, United States or County officers. Pro- 
vided, that no person shall vote for county officers out of the county in 
which he resides. 

Section 6. The elective officers of the Legislature, other than the 
presiding officers shall be a chief clerk and a sergeant-at-arms, to be 
elected by each house. 

Section 7. No county with an area of nine hundred square miles, or 
less, shall be divided, or have any part stricken therefrom, without sub- 
mitting the question to a vote of the people of the county, nor unless a 
majority of all the legal voters of the county, voting on the question, 
shall vote for the same. 

Section 8. No county seat shall be removed until the point to which 
it is proposed to be removed shall be fixed by law, and a majority of 
the voters of the county, voting on the question, shall have voted in 
favor of its removal to such point. 

Section 9. All county officers whose election, or appointment is not 
provided for by this Constitution, shall be elected by the electors of the 
respective counties, or appointed by the boards of supervisors, or other 
county authorities, as the Legislature shall direct. All city, town and 
village officers, whose election or appointment, is not provided for by 
this Constitution, shall be elected by the electors of such cities, towns 
and villages, or of some division thereof, or appointed by such authori- 
ties thereof, as the Legislature shall designate for that purpose. All 
other officers whose election or appointment is not provided for by this 
Constitution, and all officers whose offices may hereafter be created by 
law, shall be elected by the people, or appointed, as the Legislature may 
direct. 

Section 10. The Legislature may declare the cases in which any of- 
fice shall be deemed vacant, and also the manner of filling the vacancy, 
where no provision is made for that purpose in this Constitution. 

ARTICLE XIY. 

SCHEDULE. 

Section 1. That no inconvenience may arise by reason of a ehange 
from a Territorial to a permanent State government, it is declared, that 
all rights, actions, prosecutions, judgments, claims and contracts, as well 
of individuals, as of bodies corporate, shall continue as if no such change 
had taken place; and all process which may be issued under the au- 
thority of the Territorv of Wisconsin previous to its admission into the 
Union of the United States, shall be as valid as if issued in the name 
of the State. 

Section 2. All laws now in force, in the Territory of Wisconsin, which 
are not repugnant to this Constitution, shall remain in force until they 
expire by their own limitation, or be altered or repealed by the Legis- 
lature. 

Section 3. All fines, penalties, or forfeitures, accruing to the Terri- 
torv of Wisconsin, shall inure to the use of the State. 

Section 4. All recognizances heretofore taken, or which may be taken 
before the change from Territorial to a permanent State government, 
shall remain valid, and shall pass to. and may be prosecuted in the name 
of the State: and all bonds executed to the Governor of the Territory, 
or to anv other officer, or court, in his, or their official capacity, shall 
pass to the Governor or State authority, and their successors in office, 
for the uses therein respectively expressed, and may be sued for and re- 
covered accordinglv; and all the estate, or property, real, personal, or 
mixed, and all judgments, bonds, specialties, choses in action, and claims 
or debts of whatsoever description, of the Territory of Wisconsin, shall 
inure to and vest in the State of Wisconsin, and may be sued for and 
recovered, in the same manner and to the same extent, by the State of 
Wisconsin, as the same could have been by the Territory of Wisconsin. 

Wis. Con— 12. 



178 CONSTITUTION OF WISCONSIN. [Art. XIV. 

All criminal prosecutions and penal actions which may have arisen, or 
which may arise, before the change from a Territorial to a State gov- 
erment, and which shall then be pending, shall be prosecuted to judge- 
ment and execution in the name of the State. All offences committed 
against the laws of the Territory of Wisconsin, before the change from 
a Territorial to a State government, and which shall not be prosecuted 
before such change, may be prosecuted in the name and by the authority 
of the State of Wisconsin, with like effect as though such change had 
not taken place; and all penalties incurred, shall remain the same as 
if this Constitution had not been adopted. All actions at law and suits 
in equity, which may be pending in any of the courts of the Territory 
■of Wisconsin, at the time of the change from a Territorial to a State 
government, may be continued and transferred to any court of the State, 
which shall have jurisdiction of the subject matter thereof. 

Section 5. All officers, civil and military, now holding their offices 
under the authority of the United States, or of the Territory of Wis- 
consin, shall continue to hold and exercise their respective offices until 
they shall be superseded by the authority of the State. 

Section 6. The first session of the Legislature of the State of Wiscon- 
sin shall commence on the first Monday in June next, and shall be held 
at the village of Madison, which shall be and remain the seat of Gov- 
ernment, until otherwise provided by law. 

Section 7. All county, precinct and township officers shall continue 
to hold their respective offices, unless removed by the competent au- 
thority, until the Legislature shall, in conformity with the provisions 
of this Constitution, provide for the holding of elections to fill such of- 
fices respectively. 

Section 8. The President of this convention shall, immediately after 
its adjournment, caus a fair copy of this Constitution, together with a 
copy of the act of the Legislature of this Territory, entitled "An act 
In relation to the formation of a State government in Wisconsin, and 
to change the time of holding the annual session of the Legislature," 
Approved October 27th 1847, providing for the calling of this Convention, 
and also a copy of so much of the last census of this Territory, as ex- 
hibits the number of its inhabitants, to be forwarded to the President 
of the United States, to be laid before the Congress of the United States, 
at its present session. 

Section 9. This Constitution shall be submitted at an election to be 
held on the second Monday in March next, for ratification or rejection, 
to all white male persons of the age of twenty-one years or upwards, 
who shall then be residents of this Territory, and citizens of the United 
States, or shall have declared their intention to become such in con- 
formity with the laws of Congress on the subject of naturalization, and 
all persons having such qualifications shall be entitled to vote for, or 
against the adoption of this Constitution, and for all officers first elected 
under it. And if the Constitution be ratified by the said electors, it 
shall become the Constitution of the State of Wisconsin. On such of the 
ballots as are for the Constitution, shall be written or printed the word 
"yes", and on such as are against the Constitution, the word, "no". 
The election shall be conducted in the manner now prescribed by law, 
and the returns made by the clerks of the boards of supervisors or 
county commissioners (as the case may be) to the Governor of the Ter- 
ritory, at any time before the tenth day of April next. And in the 
event of the ratification of this Constitution, by a majority of all the 
votes given, it shall be the duty of the Governor of this Territory to 
make proclamation of the same, and to transmit a digest of the returns 
to the Senate and Assembly of the State, on the first day of their ses- 
sion. An election shall be held, for Governor, Lieutenant-Governor, 
Treasurer, Attorney General, members of the State Legislature, and 
members of Congress, on the second Monday of May next; and no other 
or further notice of such election shall be required. 

Section 10. Two members of Congress shall also be elected, on the 
second Monday of May next; and until otherwise provided by law, the 
counties of Milwaukee, Waukesha. Jefferson, Racine, Walworth. Rock 
and Green, shall constitute the first congressional district and elect 
one member. And the counties of Washington, Sheboygan, Manitowoc, 



RESOLUTIONS. 179 

Calumet, Brown, Winnebag-o, Fond du Lac, Marquette, Sauk, Portage, 
Columbia, Dodge-, Dane, Iowa, La Fayette, Grant, Richland, Crawford, 
Chippewa, St. Croix and La Pointe, shall constitute the second congres- 
sional district, and shall elect one member. 

Section 11. The several elections, provided for in this article shall 
be conducted according to the existing laws of the Territory, provided 
that no elector shall be entitled to vote except in the town, ward or 
precinct where he resides. The returns of election for Senators and 
Members of Assembly, shall be transmitted to the clerk of the Board 
of Supervisors, or County Commissioners, as the case may be; and 
the votes shall be canvassed, and certificates of election issued as now 
provided by law. In the first senatorial district, the returns of the 
election for Senator shall be made to the proper officer in the county 
of Brown; in the second senatorial district, to the proper officer in the 
county of Columbia; in the third senatorial district, to the proper officer 
in the county of Crawford; in the fourth senatorial district, to the proper 
officer in the county of Fond du Lac; and in the fifth senatorial dis- 
trict, to the proper officer in the county of Iowa. The returns of elec- 
tion for State officers and members of Congress, shall be certified and 
transmitted to the Speaker of the Assembly, at the seat of government, 
in the same manner as the vote for delegate to Congress are required to 
be certified and returned by the laws of the Territory of Wisconsin, 
to the Secretary of said Territory, and in such time, that they may be 
received on the first Monday in June next; and as soon as the Legisla- 
ture shall be organized, the Speaker of the Assembly, and the President 
of the Senate shall, in the presence of both houses, examine the returns, 
and declare who are duly elected to fill the several offices hereinbefore 
mentioned; and give to each of the persons elected, a certificate of his 
election. ^ 

Section 12. Until there shall be a new apportionment, the Senators 
and Members of the Assembly, shall be apportioned among the several 
districts, as hereinafter mentioned; and each district shall be entitled 
to elect one Senator, or member of the Assmbly, as the case may be.* 

Section 13. Such parts of the common law as are now in force in 
the Territory of Wisconsin, not inconsistent with this Constitution, shall 
be and continue part of the law of this State, until altered, or suspended 
by the Legislature. 

Section 14. The Senators first elected in the even-numbered Senate 
districts, the Governor. Lieutenant-Governor, and other State officers 
first elected under this Constitution, shall enter upon the duties of their 
respective offices on the first Monday of June next, and shall continue 
in office for one vear from the first Monday of January next; the Sen- 
ators first elected in the odd-numbered Senate districts, and the mem- 
bers of the Assembly, first elected, shall enter upon their duties respec- 
tively on the first Monday of June next, and shall continue in office 
until the first Monday in January next. 

Section 15. The oath of office may be administered by any Judge or 
Justice of the Peace, until the Legislature shall otherwise direct. 



RESOLUTIONS. 



Resolved.-That the Congress of the United be and is hereby 
requested, upon the application of Wisconsin for admission into the 
Ss to alter the provisions of an act of Congress entitled "an 
act to grant a quantity of land to the Territory of Wisconsin for the 
nuroose of aiding in opening a canal to connect the waters of Lake 
Michigan wi?h hose of Rock river." approved June eighteenth, eighteen 
hundred and thirtv eight, and so to alter the terms and conditions 
o? the "-miit made therein, that the odd-numbered sections thereby 
Si-anted and remaining unsold may be held and disposed of by the 

*The detailed apportionment is omitted. See Blue Book for it. 



180 CONSTITUTION OF WISCONSIN. 

State of Wisconsin as part of the five hundred thousand acres of land 
to which said State is entitled by the provisions of an act of Con- 
gress entitled "an act to appropriate the proceeds of the sales of the 
public lands, and to grant pre-emption rights," approved the fourth 
day of September, eighteen hundred and forty one; and further, that 
the even-numbered sections reserved by Congress, may be offered for 
sale by the United States for the same minimum price, -and subject 
to the same rights of pre-emption as other public lands of the United 
States. 

Resolved.— That Congress be further requested to pass an act whereby 
the excess price over and above one dollar and twenty five cents per 
acre, which may have been paid by the purchasers of said even-num- 
bered sections which shall have been sold by the United States, be re- 
funded to the present owners thereof, or they be allowed to enter any 
of the public lands of the United States to an amount equal in value 
to the excess so paid. 

Resolved.— That in ca/se the said odd-numbered sections shall be ceded to 
the State as aforesaid, the same shall be sold by the State In the same 
manner as other school lands, provided that the same rights of pre- 
emption as are now granted by the laws of the United States, shall be 
secured to persons who may be actually settled upon such lands at the 
time of the adoption of this Constitution; and provided further, that the 
excess price, over and above one dollar and twenty-five cents per acre, 
absolutely or conditionally contracted to be paid by the purchasers of 
any part of said sections which shall have been sold by the Territory 
of Wisconsin, shall be remitted to such purchasers, their representatives 
or assigns. 

Resolved.— That Congress be requested, upon the application of Wis- 
consin for admission into the Union, to pass an act whereby the grant 
of five hundred thousand acres of land, to which the State of Wisconsin 
is entitled by the provisions of an Act of Congress entitled "an act to 
appropriate the proceeds of the sales of the public lands, and to grant 
pre-emption rights," approved the fourth day of September, eighteen 
hundred and forty-one, and also the five per-centum of the nett proceeds 

of the public lands lying within the State, to which it shall 

become entitled on its admission into the Union, by the provisions of an 
Act of Congress entitled "an act to enable the people of Wisconsin Terri- 
tory to form a Constitution and State government, and for the admission 
of such State into the Union," approved the sixth day of August, eighteen 
hundred and forty six, shall be granted to the State of Wisconsin for 
the use of schools, instead of the purposes mentioned in the said acts 
of Congress respectively. 

Resolved.— That the Congress of the United States be and hereby is 
requested, upon the admission of this State into the Union, so to alter 
the provisions of the Act of Congress entitled "an act to grant a certain 
quantity of land to aid in the improvement of the Fox and Wisconsin 
rivers, and to connect the same by a canal in the Territory of Wiscon- 
sin," that the price of the lands reserved to the United States, shall 
be reduced to the minimum price of the public lands. 

Resolved.— That the Legislature of this State shall make provision by 
law for the sale of the lands granted to the State in aid of said im- 
provements, subject to the same rights of pre-emption to the settlers 
thereon, as are now allowed by law to settlers on the public lands. 

Resolved.— That the foregoing resolutions be appended to, and signed 
with the Constitution of Wisconsin, and submitted therewith to the 
people of this Territory, and to the Congress of the United States^ 



AMENDMENTS. 181 



AMENDMENTS. 

ARTICLE I. 

[Section 8, as amended by a vote of the people at the General Elec- 
tion, November 8, 1870.] 

Section 8. No person shall be held to answer lor a criminal offense 
without due process of law, and no person, for the same offense, shall 
be put twice in jeopardy of punishment, nor shall be compelled in any 
criminal case to be a witness against himself. All persons shall before 
conviction be bailable by sufficient sureties, except for capital offenses 
when the proof is evident or the presumption great; and the privilege 
of the writ of habeas corpus shall not) be suspended unless when is 
cases of rebellion or invasion the public safety may require it. 

ARTICLE III. 

[Section 1, as amended by a vote of the people at the General Elec- 
tion, November 7, 1882.] 

Section 1. Every male person of the age of twenty-one years or 
upwards belonging to either of the following classes who shall have 
resided within the State for one year next preceding any election, and 
in the election "district where he offers to vote, such time as may 
be prescribed by the Legislature, not exceeding thirty days, shall be 
deemed a qualified elector at such election. 

1. Citizens of the United States. 

2. Persons of foreign birth who shall have declared their intention 
to become citizens conformably to the laws of the United States on 
the subject of naturalization. 

3. Persons of Indian blood who have once been declared by law of 
congress to be citizens of the United States, any subsequent law of 
congress to the contrary notwithstanding. 

4. Civilized persons of Indian descent not members of any tribe; pro- 
vided, that the legislature may at any time extend by law the right of 
suffrage to persons not herein enumerated; but no such law shall be in 
force until the same shall have been submitted to a vote of the people 
at a general election and approved by a majority of all the votes cast 
at such election: and provided further, that in incorporated cities/ and 
villages, the legislature may provide for the registration of electors 
and prescribe proper rules and regulations therefor. 

ARTICLE IV. 

[Sections 4, 5. 11 and 21, as amended by a vote of the people at the 
General Election, November 8, 1881.] 

Section 4. The members of the assembly shall be chosen biennially, 
by single districts, on the Tuesday succeeding the first Monday of 
November after the adoption of this amendment, by the qualified elec- 
tors of the several districts; such districts to be bounded by county, 
precinct, town or waTd lines, to consist of contiguous territory, and be 
in as compact form as practicable. 

Section 5. The senators shall be elected by single districts of con- 
venient contiguous territory, at the same time and in the same manner 
as members of the assembly are required to be chosen, and no assembly 
district shall be divided in the formation of a senate district. The 
senate districts shall be numbered in the regular series, and the sen- 
ators shall be chosen alternately from the odd and even-numbered dis- 
tricts. The senators elected, or holding over at the time of the adop- 
tion of this amendment, shall continue in office till their successors are 



182 CONSTITUTION OF WISCONSIN. 

duly elected and qualified; and after the adoption of this amendment, 
all senators shall be chosen for the term of four years. 

Section 11. The legislature shall meet at the seat of government 
at such time as shall be provided by law, once in two years and no 
oftener, unless convened by the governor in' special session, and when 
so convened no business shall be transacted except as shall be necessary 
to accomplish the special purposes for which it was convened. 

Section 21. Each member of the legislature shall receive foo> his 
services, for and during a regular session, the sum of five hundred 
dollars, and ten cents for every mile he shall travel in going to and 
returning from the place of meeting of the legislature on the most 
usual route. In case of an extra session of the legislature, no addi- 
tional compensation shall be allowed to any member thereof, either 
directly or indirectly, except for mileage, to be computed at the same 
rate as for a regular session. No stationery, newspapers, postage or 
other perquisite, except the salary and mileage above provided, shall 
be received from the state by any member of the legislature for his 
services, or in any other manner as such member. 

[Sections 31 and 32, as amended by a vote of the people at the Gen- 
eral Election, November 7, 1871, and amendment to section 31, adopted 
November 8, 1892.] 

Section 31. The Legislature is prohibited from enacting any special 
or private laws in the following cases: 1st. For changing the name of 
persons or constituting one person the heir-at-law of another. 2d. For 
laying out, opening or altering highways', except in cases of State roads 
extending into more than one county, and military roads, to aid in the 
construction of which lands may be granted by Congress. 3d. For au- 
thorizing persons to keep ferries across streams, at points wholly with- 
in this state. 4th. For authorizing the sale or mortgage of real or per- 
sonal property of minors or others under disability. 5th. For locating 
or changing anv county seat. 6th. For assessment or collection of taxes 
or for extending the time for collection thereof. 7th. For granting cor- 
porate powers or privileges, except to cities. 8th. For authorizing the 
apportionment of any part of the school fund. '9th. For incorporating 
any city, town or villlage, or to amend the charter thereof. 

ARTICLE V. 

[Sections 5 and 9, as amended by a vote of the people at the General 
Election, November 2, I860.] 

Section 5. The Governor shall receive, during his continuance in 
office, an annual compensation of five thousand dollars which shall be 
in full for all traveling or other expenses Incident to his duties. 

'Section 9. The Lieutenant Governor shall receive, during his con- 
tinuance in offlce, an annual compensation of one thousand dollars. 

ARTICLE VI. 

[Section 4, as amended by a vote of the people at the General Elec- 
tion, November 7, 1882.] 

Section 4. Sheriffs, coroners, registers of deeds, district attorneys, 
and all other county officers except .iudicial officers, shall be chosen by 
the electors of the respective counties, once in every two years. 
Sheriffs shall hold no other office, and be ineligible for two years next 
succeeding the termination of their offices; they may be required by 
law to renew their security from time to time, and in! default of 
giving such new security their office shall be deemed vacant; but 
the county shall never be made responsible for the acts of the sheriff. 
The Governor mav remove any officer in this section mentioned, giving 
to such a copv of the charges against him and an opportunity of being 
heard in his defense. All vacancies shall be filled by appointment; and 



AMENDMENTS. 183 

the person appointed to fill a vacancy shall hold only for the unexpired 
portion of the term to which he shall be appointed and until his suc- 
cessor shall be elected and qualified. 



ARTICLE VII. 

[Section 4, as amended by a vote of the people at the General Elec- 
tion, November 6, 1877.] 

Section 4. The supreme court shall consist of one chief justice and 
four associate justices to be edeeted by the qualified electors, of the 
State. The Legislature shall, at its first session, after the adoption of 
this amendment, provide by law for the election of two associate jus- 
tices of said court, to hold their offices for terms ending two and four 
years respectively, after the end of the term of the justice of the said 
court then last to expire. And thereafter the chief justice and asso- 
ciate justices of the said court shall be elected and hold their ofiices re- 
spectively for the term of ten years. 

[Section 12, as amended by a vote of the people at the General Elec- 
tion, November 7, 1882.] 

Section 12. There shall be a clerk of the circuit court chosen in 
each county organized for judicial purposes by the qualified 1 electors 
thereof, who shall hold his office for two years, subject to removal 
as shall! be provided by law; in case of a vacancy the judge of the 
circuit court shall have power to appoint a clerk until the vacancy shall 
be filled by an election; the clerk thus elected or appointed shall give 
such security as the Legislature may require. The supreme court 
shall appoint its own clerk; and a clerk of the circuit court may be 
appointed a clerk of the supreme court. 



ARTICLE VIII. 

[Section 2, as amended by a vote of the people at the General Elec- 
tion, November 6, 1877.] 

Section 2. No money shall be paid out of the treasury, except in 
pursuance of an appropriation by law. No appropriation shall be made 
for the payment of any claim against the State, except claims of the 
United States, and judgments, unless filed within six years after the 
claim accrued. 

ARTICLE XL 

[Section 3, as amended by a vote of the people at the General Elec- 
tion, November 3, 1874.] 

Section 3. It shall be the duty of the Legislature, and they are 
hereby empowered, to provide for the organization of cities and in- 
corporated villages, and to restrict their power of taxation, assess- 
ment, borrowing money, contracting debts, and loaning their credit, so 
as to prevent abuses in assessments and taxation, and in contracting by 
such municipal corporations. No county, city, town, village, school 
district, or other municipal corporation, shall be allowed to become in- 
debted in any manner or for any purpose, to any amount, including 
existing indebtedness, in the aggregate exceeding five per centum on 
the value of the taxable property therein, to be ascertained by the 
last assessment for state and county taxes, previous to the incurring 
of such indebtedness. Any county, city, town, village, school district, 
or other municipal corporation, incurring any indebtedness as afore- 
said, shall, before or at the time of doing so, provide for the collec- 
tion of a direct annual tax sufficient to pay the interest on said debt as 
it falls due, and also to pay and discharge the principal thereof within 
twenty years from the time of contracting the same. 



184 CONSTITUTION OF WISCONSIN. 



ARTICLE XIII. 

[Section 1, as amended by a vote of the people at the General Elec- 
tion, November 7, 1882.] 

Section 1. The political year for the State of Wisconsin shall com- 
mence on the first Monday in January in each year, and the general 
elections shall be holden on the Tuesday next succeeding the first Mon- 
day in November. The first general election for all state and county 
officers, except judicial officers, after the adoption of this amendment, 
shall be holden in the year A. D. 1884, and thereafter the general elec- 
tion shall be held biennially. All state, county or other officers elected 
at the general election in the year 1881, and whose term of office would 
otherwise expire on the first Monday of January in the year 1884, shall 
hold and continue in such office respectively, until the first Monday 
in January in the year 1885. 

ARTICLE VII. 

[Section 4, as amended by a vote of the people at an election April 
2, 1889.] 

Section 4. The chief Justice and associate justices of the supreme 
court shall be severally known as justices of said court with the same 
terms of office, respectively, as now provided. The supreme court shall 
consist of five justices (any three of whom shall be a quorum), to be 
elected as now provided. The justice having been longest a continuous 
member of the court (or in case of two or more of such senior justices 
having served for the same length of time, then the one whose com- 
mission first expires), shall be ex-officio the chief justice. 

[Section 7, as amended by a vote of the people at an election, April 6, 
1897.] . 

Section 7. For each circuit there shall be chosen by the qualified 
electors thereof, one circuit judge, except that in any circuit com- 
posed of one county only, which county shall contain a population ac- 
cording to the last state or United States census, of one hundred thous- 
and inhabitants or over, the Legislature may, from time to time, au- 
thorize additional circuit judges to be chosen. Every circuit judge 
shall reside in the circuit from which he is elected, and sh«ll hold 
his office for such term and receive such compensation as the Legisla- 
ture shall prescribe. 



INDEX. 



A. 



Accusation, right to know 24 

Accused persons, rights of 23 

Address, removal by 117 

Adjournment of each house 60 

Administrative department 97-101 

Advice to the people 38 

Agricultural college 143 

Aliens, resident 34 

Allodial lands 32 

Amendments 152-154 

Apportionment, legislative 59 

Appropriations 124 

Assembly, right of 20 

Assembly, the 58, 59 

Assembly districts 61 

Attainder, bills of 30 

Attorney general 98, 99 

Australian ballot 55 

Ayes and noes 75 



B. 



Bail, excessive 22 

right to 27 

Ballot, vote by 54 

Banks 149 

Betting on elections 57 

Biennial sessions 60 

Bills, private and local 73 

may originate where 74 

become laws, how 95 

Boundaries and jurisdiction of 
state 39-47 



Candidacy for office of judges for- 

► bidden 114 

Certiorari, writ of 110 

Circuits, judicial Ill 

Cities, classification of 147 

government of 148 

Citizenship of U. S 52 

of state 52 

Claims against state 124 

Clerk of circuit court 116 

Code, the 122 

Committees 68 



Compensation for property taken 32 

of members 76 

of officers and con- 
tractors 82 

of governor 91 

of lieutenant gov- 
ernor 95 

of judges 114 

Conciliation, tribunals of 119 

Constitutional convention 153 

Constitution of Wisconsin, history 5 

objects of 10 

Contracts, obligations not im- 
paired 31 

Corporations 145-151 

Corruption of blood 31 

Counsel, right to have 24 

Counties, division of 159 

County boards 77 

government 78 

officers 100 

seats, change of 160 

officers elected 160 

Court commissioners 122 

Courts of the state 106 

Court, supreme 106-117 

circuit 111-117 

terms of 115 

clerk of 116 

probate 118 

jurisdiction of 118 

Credit of state not loaned 125 



D. 

Debt, imprisonment for 34 

Debts of the state 125-128 

Declaration of rights 14-39 

Democracy, our government a . . . 47 
Districting the state, rules for ... 61 

Divorces 81 

Dueling 57, 156 



E. 

Education 134-144 

Election, the general 155 

Election day 61 

Elections, each house judges of .. 64 

by legislature 76, 83 

of judges 113 

Eligibility, see Qualifications. 



186 



INDEX. 



Eminent domain 132 

Enacting clause 9-14 

Entails forbidden 33 

Equity and law 120 

Error, writs of 37 

Escheats 133, 135 

Executive department 86-97 

Exemption laws 35 

Ex post facto laws 30 

Expulsion of members 67 

F. 

Feudal tenures 32 

Finances 123-129 

Fines, excessive 23 

Foreigners, vote 51 

Freedom defined 14 

of speech 18 

of assembly and petition 20 

of religion 35, 36 

how maintained 38 

of speech in legisla ture . . 72 

G. 

God, thanks to 10 

Governor, executive power vested 

in 86 

eligibility of 87 

election of 87 

powers and duties of . . . 88 

salary of 91 

power to pardon 91 

H. 

Habeas corpus 28,109 

History cf the State Constitution . 5 



Impeachment 102 

Imprisonment for debt 34 

Indians may vote 50, 52 

Indian lands, residents on 158 

Inherent rights . 15 

Injunction, writ of 109 

Insurance commissioner 98 

Internal improvements 129 



Judiciary department 102-123 

Judges, see Courts. 

Jurisdiction of state 42 

Jurisdiction, see Courts. 

Jury, trial by 21, 25 

grand, abolished 26 

Justice should be free and certain 28 
Justices of the peace 118 



Land, title to 42 

Law, due process of '26 

Lawyer, right to have 121 

Laws, publication of 121 

style of 72. 

bybill 73 

private and local 73 

must be general 85 

Legislative department 58-85 

Lieutenant governor 94 

see also governor 

Lotteries 80 



M. 



Mandamus, writ of 109 

Military, subordinate 37 

Militia 83 

Milwaukee county, judges in 106,107,112 
Miscellaneous provisions 155-162: 



N. 

Nation and state 12" 

Navigation free 131 

Normal schools 136 



o. 



Oath of office 83 

Office, no religious test for 36 

disqualifications for 156 

Officers of each house 67, 159 

state 98 

local, not appointed by 
state 161 



P. 



Pardons 91 

People, the source of the Constitu- 
tion 9 

Petition, right of 20 

President of senate 67 

Printing, state 81 

Privileges of members 72 

Probate judges 118 

Process, form of 119 

Property, not taken without com- 
pensation 32 

Publicity of proceedings 68 

Punishments, cruel and unusual. . 23 

Punish, power of each house to. . . 66 



INDEX. 



187" 



Q. 



Qualifications, each house judge 

of 64 

Qualification of members 63 

of governor and 
lieutenant gover- 
nor 87 

of judges 114 

Quorum 64 

Quo warranto, writ of 109 



R. 



Railroad commissioner 98 

Registration of voters 51 

Religion, freedom of 35, 36 

Representative democracy, our 

government a 47 

Representation of women and 

children 48 

Representation of the voters 49 

Reputation, rights of 19 

Residence of voters 50 

of soldiers, etc 56, 57 

Restrictions on members 70 

on eligibility 71 

Rights, declaration of 14-39 

inherent 15 

Rules of each house 65 



s. 



Salaries, see Compensation. 

School fund v 135 

land commissioners 144 

Schools, common 137 

normal 136 

Seal, the great 158 

Searches and seizures 30 

Secretary of state 98, 99 

Senate, the 58, 59 

districts 62 

president of 67 

Sessions of legislature 70 

Sheriffs 100 

Slavery prohibited 17 

Soil, primary disposition of 45 

Speech, freedom of 18 

Special legislation 84 

State and nation 12 

Suffrage 47-57 

Suits against state 82 

Superintendent, state 98, 134 

Supervision of public instruction. 134 
Supreme court 106-117 



T. 

Taxation, none on U. S. land 46 

equal for non-residents 46 

uniform 123 

-annual 125 

Tax on suits 120 

Taxes, school 141 

Teachers' institutes 137 

Term of office 63, 86, 98, 100, 106 

Testify, not against self 27 

Titles to land 42 

Town government 78 

Treason 29 

Treasurer, state 98,99 

Trial, right to speedy public 25 

only once for same offense. 27 



u. 

University, state 141, 142 



Vacancies in judgeship 113 

in legislature 71 

in governorship 93 

in office 161 

Veto 95 

Villages, organization of 149 

Voters, qualifications of 49 

disqualifications . 53 

Voting by ballot 54 



w. 

Witnesses, right to cross-examine 24 

right to subpoena 25 

not against self 27 

Writs of error 37 

of habeas corpus 109 

of mandamus 109 

of injunction 109 

of quo warranto 109 

of certiorari 110 

form of 119 



Y. 



Yeas and nays. 



75 



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hK£. RY of congress 



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